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1) What is tort law? Why do we need tort law?

The word ‘tort’ derives from the Latin tortus, meaning crooked or twisted, and the Norman-French tort, meaning wrong. In English law we use the word tort to denote certain civil wrongs as distinct from criminal wrongs.

A tort is a civil wrong, other than a breach of trust or breach of contract. The law of tort, therefore, provides remedies for the: 1) intentional and direct interference with another's person, property or land (trespass); 2) indirect interference with another's land (nuisance); 3) unintentional and careless interference with another's person or property (negligence); 4) slighting of another's reputation (defamation). It also protects more specialized interests (e.g. business and economic interests), and has specific rules regarding liability for premises and animals.

2) What is difference between crime and tort?

Crime Any act of an individual or a group that is harmful to others, the society, or the state in general is considered a crime that is punishable by a court of law. There are written laws made by legislators that apply to all citizens of a country and they have to be followed in letter and spirit by the people. A crime is said to have been committed when there is a violation of any of the laws of the land. Tort When there is a dispute between individuals, that takes a legal shape, it constitutes a tort. One individual commits a wrong against another individual where the victims is injured or harmed. The victim can bring a law suit against the perpetrator of the tort to seek redressal of their harm through financial compensation. In general, a tort is a civil wrongdoing and involves cases where a person’s behavior or action causes injury or harm to another individual or many persons. A tort may not be a crime but is still considered a wrongdoing that requires compensation to be paid to the victim by the person committing tort.

• While the focus is on punishment of criminal in a crime, the focus is on financial compensation in the case of torts.

• Instead of moral wrong as in crime, the personal injury caused to an individual takes precedence in a tort.

• Public interest is a part of crime while it is only private interest in case of a tort.

• Aggrieved party is the initiator of the proceedings in a law court while in case of a crime the case is initiated by the state.

• In a crime, a defendant has a right to a counsel while, in a tort, there is no such right for the defendant.

• Some of the crimes are torts while some of the torts may not be crimes.

3) What relief can a victim of tort obtain?

The object of proceedings in tort is not punishment, but compensation or reparation to the claimant, previously designated as the plaintiff for the loss or injury caused by the defendant, i.e. damages. The same facts may disclose a crime and a tort.

The general rule is that anyone of full age may sue and be sued in tort. At common law the maxim ‘The King can do no wrong’ applied until 1947. The Crown Proceedings Act, 1947, altered the common law, and section 2(1) now provides that ‘the Crown shall be subject to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subject.

The Crown is not liable for torts committed by the police by other public officers who are appointed and paid by local authorities, or by members of public corporations such as the Coal Board, Gas Board, and Electricity Board.

Judges have absolute immunity for acts within their judicial capacity. This immunity probably also applies to justices of the peace acting within their jurisdiction. Counsel and witnesses have similar immunity in respect of all matters relating to the case with which they are concerned. A foreign sovereign is not liable in tort in the English courts of law unless they submit to the jurisdiction, thereby waiving their immunity from legal process. They may however, sue in an English court. Ambassadors, High Commissioners and certain other diplomats cannot be sued in tort during their terms of office.

4) How can torts be classified?

Torts may be classified into three broad categories:

1) Intentional torts such as battery

2) Unintentional torts such as negligence in a slip and fall case

3) Strict liability torts such as those involving ultrahazardous materials that are dangerous in and of themselves

Torts are categorized under civil laws, rather than criminal laws. This means that some torts may involve conduct that is not necessary illegal, but causes harm to another person. However, some tort cases may involve an overlap with criminal laws (such as assault).

Some common examples of torts include:

  • Negligence-related claims

  • Civil assault/civil battery

  • Wrongful death claims

  • Trespassing

  • Products liability and dangerous products

  • Intentional inflection of emotional distress

Probably the most common type of tort lawsuit is negligence. In order to prove negligence, the victim needs to prove that the defendant breached a duty of care owed to them, and that the breach was the cause of their injuries or losses. 

For instance, if the defendant had a duty to keep their shop floor clean, but failed to do so, the plaintiff may be able to sue them if they were injured due to a slip on the dirty shop floor.

5) Is it a tort when you injure someone by not being careful? How does a plaintiff prove that a defendant has been negligent? What requirements should be proved in order to make an action for negligence successful?

Negligence is the failure to take reasonable care where a duty to do so exists, and where that failure causes recoverable loss or damage to the person to whom the duty is owed. Therefore, negligence is more precise than simple carelessness, and is only actionable upon proof of damage. Negligence emerged as a distinct tort from the tort of trespass. Five requirements must be met for negligence liability to arise:

1) The damage suffered by the claimant must disclose a cause of action;

2) The defendant must owe the claimant a duty of care;

3) The defendant must have been in breach of that duty;

4) The breach of duty must have been a cause in fact of the claimant's damage;

5) The claimant's damage must have been a reasonably foreseeable consequence of the defendant's breach.

The cause of action

The forms of damage that are recoverable in negligence are:

1) Personal injury;

2) Physical damage to property;

3) Economic loss consequential on either of the above.

6. What is the duty of care? (Reasonable care should be always be owed to anybody who can be closely effected by your conduct)

As noted above, Lord Atkin's original formulation of neighborhood as the test for duty of care has been subject to a number of refinements .The present test is one of proximity, i.e. there must be a sufficiently proximate (or close) relationship between claimant and defendant so that it is fair, just and reasonable in the circumstances to impose a duty of care on the defendant. For proximity to arise there must be neighborhood (in the sense of foreseeability of harm). However, neighborhood alone does not automatically amount to proximity. The court also considers previous cases by way of analogy and, where appropriate, questions of public policy. Therefore, proximity is a more flexible (and less predictable) notion than that of neighbourhood. There are two particular situations where the courts have imposed additional requirements (over and above mere neighborhood) in order to satisfy the requirement of proximity and, hence, to give rise to a duty of care.

7. At present what are the three interrelated things that must be shown? (Foreseeable dam/, proximity between the claimant and the defendant/ the duty was owed to him, it must be fair, just and reasonable)

The forms of damage that are recoverable in negligence are:

1) personal injury;

2) physical damage to property;

3) economic loss consequential on either of the above.

However, pure economic loss is generally not recoverable. This limitation is not a matter of principle (as pure economic loss is often reasonably foreseeable). Rather, it is a matter of policy to avoid placing the defendant in a position of almost unlimited liability.

The present test is one of proximity, i.e. there must be a sufficiently proximate (or close) relationship between claimant and defendant so that it is fair, just and reasonable in the circumstances to impose a duty of care on the defendant.

8) Give the examples of the cases to prove proximity requirement. (What about cases of nervous shock)

The present test is one of proximity, i.e. there must be a sufficiently proximate (or close) relationship between claimant and defendant so that it is fair, just and reasonable in the circumstances to impose a duty of care on the defendant.

Nervous shock is a precise term meaning a recognized psychiatric illness (e.g. Post-Traumatic Stress Disorder) caused by shock. The law does not recognize claims for ordinary grief or sorrow, no matter how keenly or deeply felt. Therefore, it would seem that a person is owed a duty of care in respect of nervous shock where:

1) The shock is consequent upon physical injury to himself; or

2) The shock is consequent upon a reasonably apprehended fear of physical injury to himself, even though no injury in fact occurs;

3) Personal injury to the claimant (whether physical or psychological) is reasonably foreseeable.

The position is a little more complicated where shock is caused by injury or fear of injury to another person. The House of Lords stated the present position here when considering a series of test cases arising from the Hillsborough Stadium disaster. A person is owed a duty of care in respect of nervous shock where:

1) The shock is consequent upon physical injury to another;

2) The claimant sees or hears (or some equivalent thereof) the accident itself or its immediate aftermath;

3) The claimant (the secondary victim) has a close relationship of love and affection with the injured person (the primary victim) or the claimant is a rescuer;

4) Psychological injury to the claimant (the secondary victim) is reasonably foreseeable; or

5) The shock is consequent upon a reasonably apprehended fear of physical injury to another, even though no injury in fact occurs, and the requirements stated above are met.

9) What is considered fair, just and reasonable in English tort law? (Not liable to a vast number of people, not inhibits the exercise of a public person or a public duty)

Fairness, justice and reasonableness are relevant to all cases of alleged negligence whatever the nature of the harm sustained by the plaintiff. 

The establishment of a duty of care is, like negligence itself, broken up into further elements, a three step test (or insome cases more). "Donoghue v. Stevenson" laid the groundwork for subsequent developments, and from thewords of Lord Atkin's speech, he can be seen to refer to firstly, the concept of reasonable foreseeability of harm;secondly, the claimant and the defendant  being in a relationship of proximity; and thirdly, and more loosely, it being fair, just and reasonable to impose liability on the defendant for his careless action.

And, in order to decide whether it is fair, just and reasonable to impose a duty of care the courts must consider all the circumstances including the position and role of the alleged tortfeasor and any relevant policy considerations

10) What is the standard of care? (E.g/. Conduct of a reasonable man/ accountants and lawyers and standard of care)

In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care.

The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually phrased in terms of the reasonable person.

The reasonable man is expected to possess a certain amount of basic knowledge (e.g. that acid burns) and to show a basic or ordinary level of skill. Generally, expert skill or knowledge is not expected unless the defendant has claimed such knowledge or skill. However, this comparison will not help the defendant where it would have been clear to a reasonable man that the accepted practice was itself negligent.

1) Mental or physical incapacity may make it impossible for the defendant to show reasonable care. It would be unjust to hold them negligent in failing to show, the degree of care it is impossible for them to achieve.

2) Young children are not required to show the same degree of care as adults.

3) The elderly are not expected to show the same degree of physical or mental agility or speed of reflex as that of a younger adult.

4) The court may take account of illness on the part of the defendant provided it is both sudden and incapacitating and there has been no forewarning.

11) Who bears the onus of proof in negligent cases generally? (Claimant)

The burden of proving breach lies on the claimant. This is the civil burden of showing that, on the balance of probabilities; the defendant was in breach of duty. However, for a variety of practical reasons, it may be extremely difficult (or even impossible) for the claimant to present definite proof of the defendant's breach. In such circumstances, the claimant may be able to rely on the res ipsa loquitor maxim. This is a rule of evidence that asks the court to accept that "the facts speak for themselves" and infer breach of duty from the general circumstances of the case. For the maxim to apply, two requirements must be met:

1) the accident must be of a type that does not normally occur without someone having been negligent;

2) the circumstances must not merely indicate negligence by someone but negligence on the part of the defendant.

The maxim can only be used to establish breach of duty. It cannot be relied on to establish the required causal link between the defendant's breach and claimant's damage.

12) Give the ex. Of res ipsa loquitur/ (unattended cars run away, cakes – stones)

Привести пример.

13) What types of losses do you know? (economic loss, loss of earnings, medical expenses, personal injury, property damage) + 14) Is purely financial loss recoverable for negligence? (Rarely)

The forms of damage that are recoverable in negligence are:

1) Personal injury;

2) Physical damage to property;

3) Economic loss consequential on either of the above.

However, pure economic loss is generally not recoverable. This limitation is not a matter of principle (as pure economic loss is often reasonably foreseeable). Rather, it is a matter of policy to avoid placing the defendant in a position of almost unlimited liability.

There is one important exception to this general position. Pure economic loss is recoverable where there is a special relationship between claimant and defendant, i.e. where the claimant was relying on the specialist skill and knowledge of the defendant.

15) Nervous shock. Primary victims. Secondary victims.

Nervous shock is a precise term meaning a recognized psychiatric illness (e.g. Post-Traumatic Stress Disorder) caused by shock. The law does not recognize claims for ordinary grief or sorrow, no matter how keenly or deeply felt. As with negligent statements, it is the potential breadth of liability that is the prompt for limitations here. As Lord Wilberforce observed "just because 'shock' in its nature is capable of affecting so wide a range of people there is a very real need for the law to place some limitation on the extent of admissible claims". Therefore, it would seem that a person is owed a duty of care in respect of nervous shock where:

1) The shock is consequent upon physical injury to himself; or

2) The shock is consequent upon a reasonably apprehended fear of physical injury to him, even though no injury in fact occurs

3) Personal injury to the claimant (whether physical or psychological) is reasonably foreseeable

Primary victims The law of negligence relating to nervous shock makes an important distinction between primary and secondary victims. Primary victims are those who have been directly involved in the accident and are at the range of foreseeable injury. There are no policy control mechanisms to limit the number of claimants. The question of foreseeability is the basic one and there is no distinction between physical and psychiatric injury while ruling with claims of nervous shock. Primary victims are those who fear physical injury to themselves, or rescuers of the injured, or those who believe they are about to be, or have been, the involuntary cause to another’s death or injury.

Secondary victims Before there can be liable in the case of secondary victims, there must be a medically recognized psychiatric illness or medical disorder; there is no liability for emotional distress or grief unless this leads to a recognizable medical condition. There have been held to include: depression, personality charge, post-traumatic stress disorder. It was held that there could be no claim for the terror suffered immediately before death for the knowledge that the death was imminent. An abnormally sensitive claimant will be unable to recover unless a person of ‘normal fortitude’ would have suffered There are some other criteria that the claimant will have to satisfy before they can recover for nervous shock in the case of secondary victims.

Proximity in terms of relationship- the claimant must be in a close and loving relationship with the accident victim. Rescuers are the exception to the case.

Proximity in terms of time and space- the claimant must be at the scene of the accident, in the vicinity of the accident or come across the ‘immediate aftermath’ of the accident. The claimant’s injuries must be reasonably foreseeable. There must be a direct perception of the accident by the claimant with his own unaided senses

Rescuers The law does not oblige a person to undertake a rescue unless the parties are in special relationship, but the courts are favorably disposed to someone who does attempt a rescue and is injured in the process. Rescuers may be owed a duty in situations when 1) rescue is foreseeable. and 2) there must be real threat. But rescuer himself can owe a duty to the accident victim when 1) the rescuer is negligent and 2) if he induced the claimant rely on him.

16) Defenses to negligence: contributory negligence defense, volenti поп fit injuria

Five requirements must be met for negligence liability to arise:

1) The damage suffered by the claimant must disclose a cause of action;

2) The defendant must owe the claimant a duty of care;

3) The defendant must have been in breach of that duty;

4) The breach of duty must have been a cause in fact of the claimant's damage;

5) The claimant's damage must have been a reasonably foreseeable consequence of the defendant's breach.

Where the claimant has met these five requirements, the defendant will be liable unless he is able to raise a defence. There are three main possibilities: Contributory negligence, volenti non fit injuria, exclusion of liability.

Contributory negligence This is where the claimant's damage is due, in part, to his own negligence. Under the Law Reform (Contributory Negligence) Act 1945, this is a partial defense, allowing the court to apportion responsibility for the damage between the claimant and defendant and reduce the defendant's liability accordingly. The defendant must show:

1) The claimant failed to exercise reasonable care for his own safety (Davies v. Swan Motor Co (Swansea) Ltd [1949]);

2) This failure made a material contribution to the claimant's damage. In apportioning responsibility, the court considers two factors:

3) The extent to which the actions of the claimant and defendant were a cause of the damage (the causative potency test);

4) The degree to which the claimant and defendant departed from the standards of the reasonable man (the degree of blameworthiness test).

Volenti поп fit injuria Volenti (consent to the risk) is a complete defence to negligence. However, the circumstances in which it may be raised are severely limited and it is of little practical application today. Volenti may be inferred from the claimant's conduct where four requirements are met:

1) The claimant was aware of the defendant's negligent conduct;

2) The claimant was aware of the risk to himself that this created;

3) The claimant continued to participate freely in the activity in the face of this knowledge;

4) The damage suffered was a reasonably foreseeable consequence of the risk consented to.

Exclusion of liability The defendant may seek to rely on ал undertaking by the claimant to accept the risk of negligence in order to exclude or limit his liability. However, as noted above, the extent to which he can do this is limited by the Unfair Contract Terms Act 1977: 1) section 2(1) provides that a person cannot, by reference to any contractual term or non-contractual notice, exclude or restrict business liability for causing death or personal injury through negligence; 2) section 2(2) provides that such liability for other forms of loss or damage can only be excluded or restricted in so far as the term or notice is reasonable; 3) section 2(3) provides that a person's agreement to or awareness of such a term or notice does not, in itself, amount to volenti.

Nevertheless, there may still be certain non-business situations where such undertaking would be effective in excluding or restricting the defendant's liability.

17. What is private nuisance? What is the basis of liability in private nuisance?

Private nuisance is the indirect and unreasonable interference with the use or enjoyment of neighbouring land. This may be caused by many different things, e.g. noise, smoke, odours, fumes, water and plant and tree roots. The basis of liability here is the failure to meet the reasonable expectations of one's neighbours. While this has clear similarities with negligence, there are also important differences. In negligence, the question is whether the defendant's conduct was reasonable, while in nuisance the question is whether the effect of that conduct on the defendant's neighbors’ is reasonable.

18. What factors are relevant in classifying the deed as nuisance?

This is the essential element. A nuisance is only actionable where it causes damage to the claimant's interests. This requirement is clearly satisfied where the nuisance causes physical damage to the claimant's land, as this is always unreasonable.

Other relevant factors

While proof of damage is essential to a successful nuisance action, there are a number of other factors the court may consider:

1) Generally, the nuisance must be of a continuing or regular nature. Isolated or irregular instances will not normally amount to a nuisance.

2) Where the damage complained of is disturbance, to use or enjoyment, the court may consider the character of the neighbourhood. What may be reasonable in an industrial area may not be in a residential area.

3) The fact the claimant may be unusually sensitive is not relevant to the issue of liability—the test remains the expectations of the reasonable neighbour. However, once liability has been established, unusual sensitivity may be relevant to the question of remedies.

4) While malice on the part of the defendant is not an essential requirement, the presence of malice may tip the balance, converting otherwise reasonable conduct into an actionable nuisance.

5) The defendant may be liable for a nuisance caused by the fault of another or due to natural causes. This is known as "adoption" or "continuance" of nuisance, and arises where the defendant knew or ought to have known of the nuisance and failed to take reasonable steps to stop it.

19) Types of damage in private nuisance. Is personal injury covered by a private nuisance action?

Physical damage As a general rule, nuisance is not actionable per se and actual damage must be proved, subject to the following exceptions: where a presumption of damage can be made, for example, by building a cornice so that it projects over the claimant's land, it may be presumed that damage will be caused to the claimant's land by rain water dripping from the cornice onto the land; interference with an easement, profit a prendre or right of access where there has been acquiescence in certain circumstances.

Amenity damage Amenity damage is interference such as noise, smells, dust and vibrations which will interfere with use and enjoyment of land without physically damaging the property. In the case of amenity damage, the degree of interference will be measured against the surrounding circumstances.

20. Who can sue and be sued in nuisance?

Nuisance protects those persons who have an interest in the land affected, so only an owner or occupier with an interest in the land can sue.

1) The creator of the nuisance A person who creates a nuisance by positive conduct may be sued. It is not necessary for the creator of the nuisance to have any interest in the land from which the nuisance emanates. A defendant in trespass need not be a neighbouring landowner and the same should be true in nuisance.

2) The occupier The occupier is the usual defendant in private nuisance. An occupier will be liable for:

1) Persons under his control.

2) Independent contractors. Where nuisance is an inevitable or foreseeable consequence of work undertaken by independent contractors, the occupier cannot avoid liability by employing a contractor.

3) Actions of a predecessor in title. An occupier who knows or ought reasonably to have known of the existence of a predecessor in title will be liable for continuing the nuisance if he does not abate it. If the nuisance could not reasonably have been discovered, he will not be liable.

4) Actions of trespassers. An occupier is not liable for a nuisance created on his land by a trespasser unless he adopts or continues the nuisance.

5) Acts of nature. At common law, it was thought that an occupier had no duty to abate a nuisance that arose on his land from natural causes. The extent of the obligation was to permit his neighbor access to abate the nuisance.

3) The landlord A landlord may be liable for a nuisance arising in three types of situation:

(a) Where the landlord authorized the nuisance.

(b) Nuisance existed before the date of the letting.

(c) Where the landlord has an obligation or a right to repair. The law on landlords' liability for nuisance is still developing

21) What defenses can be raised in nuisance?( Defenses: Consent of the claimant. Prescription. Statutory authority)

Consent of the claimant Where the claimant has expressly consented to the nuisance, this is a defense provided it is true consent, i.e. to both the nature and extent of the nuisance. Prescription This is a form of implied consent. Where the defendant has been committing the nuisance for more than twenty years and has done so without force, secrecy or permission, this is a defense against a claimant who has not complained during this time. Statutory authority The defendant may have a defense where their actions are in pursuance of a statutory power or duty, though they must take all reasonable steps to keep any nuisance caused to a minimum.

22) What is the most common remedy for the tort of nuisance?

At common law, a successful claimant has a right to damages. However, it may well be that the claimant wants the nuisance stopped by an injunction. We should remember that an injunction, being an equitable remedy, lies in the discretion of the court and will only be granted where it is just and equitable to do so. A self-help remedy, abatement, is also available. The claimant may take all reasonable steps to stop the nuisance though, for a variety of reasons, this is usually not advisable.

23. What is public nuisance? What rights does it protect? (Rights enjoyed by all members of the community, such as the right to fresh air, to travel on the highways, not to be exposed to danger to health) Can an individual sue in public nuisance?

A public nuisance is a crime as well as a tort. The remedy for a public nuisance is a prosecution or relator action by the Attorney General on behalf of the public. A claimant who suffers particular damage, over and above the damage suffered by the rest of the public, may maintain an action in public nuisance. Public nuisance has been defined as 'an act or omission which materially affects the reasonable comfort of a class of Her Majesty's subjects'.

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24. When does a tort of nuisance give rise to strict liability? What are the main principles formulated in Rylands v Fletcher?

There is a limited amount of strict liability, principally concerning liability for certain extra-hazardous activities. This liability may be imposed by statute or under the common law rule established in Rylands v. Fletcher [1868].

Under this rule: A person who is in occupation of land and brings onto that land something that is not naturally there, and does so for his own non-natural use, and that thing is likely to do mischief should it escape, then that person will be liable for the consequences of any such escape, even in the absence of any fault on his part. The various elements of this rule require further explanation.

1) The defendant must have been in occupation (i.e. in control) of the land from which the thing escapes.

2) The thing must not have been naturally present on the land [e.g. self-sown trees and plants are naturally present whereas deliberately cultivated ones are not).

3) The thing must have been brought onto the land by the defendant for his own use, though not necessarily for his own benefit.

4) The defendant must have been using the land is some non-natural way. i.e. he must have been engaged in some special use bringing with it an increased danger to others, and not merely the ordinary use of land or that which is for the general benefit of the community. This considerably limits the scope of the rule in practice.

5) The thing must be likely to do mischief should it escape. This does not mean it has to be inherently dangerous; merely that it is potentially dangerous should it escape in аn uncontrolled way.

6) The thing must escape, i.e. leave the confines of the defendant's land. Where there is no escape, the claimant must rely on the principles of negligence, occupiers' liability or nuisance as appropriate.

25) What intentional torts do you know? (Trespass to the person, trespass to land, trespass to chattels, conversion, defamation, fraud) What actions amount to trespass to the person?

26) What constitutes a tort of assault?

Assault is an act which causes another person to apprehend immediate and unlawful personal violence. The conduct forbidden by this tort is an intentional act that threatens violence, or in other words one that produces in the claimant a reasonable expectation of immediate, unlawful force. The tort is actionable per se. Assault is both a tort and a crime; the relevant principles of law apply to both. The actual application of force is known as the tort of ‘battery', and the term 'assault' is used in both ordinary and (sometimes) in legal speech to refer to both the threat and the application.

Mere words do not constitute an assault, however. The intent must be shown in acts not just in speech.

27) What actions amount to a tort of battery?

Battery consists in applying force, however slight, to the person of another hostilely or against their will. The charge of battery is usually combined with assault, namely ‘assault and battery’. Common examples include giving a person a black eye, or throwing water at them.

As the tort of battery consists of a direct act of the defendant resulting in an undesired contact with the person of the claimant this contact must be intentional.

28) What actions amount to a tort of false imprisonment?

The tort consists in the infliction of bodily restraint of another without lawful justification. As with assault and battery, false imprisonment is actionable per se (i.e. in itself) without proof of damage. The restriction of the claimant need not take the form of confinement in a room or prison cell: according to the Termes de la Ley, 'imprisonment is the restraint of a man's liberty, whether it be in the open field, or in the stocks, or in the cage in the streets or in a man's own house, as well as in the common gaole'. Moreover, imprisonment does not have to involve seizure of the claimant; touching and informing him that he is under arrest are sufficient.

However, the restraint must be complete; that is to say, the claimant's freedom of movement has to be impeded in every direction. There is a distinction to be drawn here between confinement and obstruction. It is not sufficient to prevent a person from going forward if he is free to go back, or vice versa.

29) General defenses: Self- defence. Defence of property. Consent of the claimant. Parental authority. Judicial authority. Preservation of peace. Protection from harassment.

The following defences may be offered to an action for trespass to the person.

(1) Self-defence. It is lawful for a person to defend him or herself from an assault or battery. The defence must be proportionate to the attack, no more force being used in defence of oneself than is reasonably necessary.

(2) Defence of property. Similar rules apply to the defence of one’s property, including a house. An occupier may use reasonable force to eject a trespasser. Where the trespass is not forcible, the occupier should first request the trespasser to leave; secondly allow to them sufficient time to do so peaceably; and finally, if they still refuse to leave, the occupier may use reasonable force to eject them.

(3) Consent of claimant. The normal rules of volenti non fit injuria apply.

(4) Parental or other authority. A parent may administer reasonable punishment to a child or young person. This punishment includes locking them in a room, if need be, though one shall stress that in all cases the test is reasonableness. Long imprisonment is to amount to the criminal offence of cruelty to a child.

(5) Judicial authority. A judge who acts within judicial authority may grant a warrant of arrest, in which case the person executing the arrest (may\must) use reasonable force to detain the person named.

(6) Preservation of the peace. All persons owed a duty not to disturb the public peace either by committing crime or causing public disorders and the like. The police have wide common law and statutory powers to make arrests to enforce the law and to preserve the peace. If the individual constable acts lawfully, no action lies against him or her in trespass, provided that they used no more force than is reasonably necessary to affect the arrest.

(7) Protection from harassment. In accordance with the Protection from Harassment Act, 1997 a civil tort creates in England and Wales where a person involved in a course of conduct amounting to harassment of a person or where such a person fears that violence will be used against them. In these circumstances an order can be sought restraining such harassment. If that order breaches that will constitute an offence.

30) What constitutes a tort of trespass to land?

Trespass to land is the direct and intentional interference with another's land. Meanwhile land includes not only the land itself but also the ground beneath it, any building on it, and the airspace above to such a height as is necessary for reasonable use and enjoyment. Also, the claimant must be in possession of the land affected. For the purposes of trespass, possession means having the right to exclusive occupation of the land. Again it may be noted it is not necessary to prove actual damage to the land, the tort being actionable per se. The defendant must have interfered directly (indirect interference is dealt with through nuisance) with the rights of the claimant by, for example:

1) Unauthorized entry to the land;

2) Remaining on the land once asked to leave;

3) Placing things on the land;

4) Tunneling under the land; invading the airspace above the land. Intentional—this simply means that the defendant's presence on or conduct in relation to the land must be intentional. It is not necessary to show the defendant intended to trespass.

31) What is the difference between trespass and nuisance?

In general, any person, thing, or circumstance causing inconvenience to another person is labeled as nuisance. However, it becomes unlawful when it prevents someone from enjoying and using his own property. This means that a landowner can sue another person for causing nuisance if he is not able to enjoy his property because of him. Thus, nuisance is indirect in nature. A neighbor playing music loudly in his own house can be a source of nuisance for you. You become annoyed as you cannot peacefully do what you are doing.

Trespass is a tort that requires someone to interfere with the property of the plaintiff in a direct manner. If a neighbor plants trees on your property, it is a trespass. Even if, he throws some stones that fall in your property, the action classifies as trespass. Trespass includes not just the surface area but also the aerial space above the property of the plaintiff. The thing to remember in case of trespass is that it comes into action only when there is a physical invasion by a thing or a person. If someone unlawfully enters and stays in your property, he is said to be trespassing.

-Trespass requires entry into the property of the plaintiff whereas nuisance is indirect and can take place from outside the property of the plaintiff.

-Landowners have a right to enjoy their property, and it is when this right is interfered with that the tort laws of nuisance and trespass come into action.

-Trespass is direct and requires physical invasion while nuisance can be created in an indirect manner.

-There is interference with possession in trespass while it is not required in nuisance.

32) What is trespass ‘ab initio’?

Where a person enters on the land of another by authority of law (as distinct from authority conferred by the claimant occupier) they may become a trespasser if, by their subsequent conduct, they abuse their right of entry. This doctrine is known as trespass ab initio and is exemplified by the ancient case given below. The subsequent conduct which abuses the right of entry may be stealing an article from the occupier. The abuse relates back to the original entry and he or she becomes a trespasser. The abuse must consist of a misfeasance (i.e. some positive act of wrongdoing, such as stealing) not a non-feasance (i.e. an omission to do something, such as failing to pay for food or drink).

33) What are justifications for entry?

The justification may, therefore, be a defence, as follows:

1) Entry by lawful authority: e.g. by police to make an arrest or to search premises or by bailiffs to distrain for rent or to eject a tenant.

2) Entry to abate a nuisance in emergency

3) Entry made to retake a chattel owned by defendant provided the chattel is placed there by the claimant (occupier of the land) or, possibly, by a third person, and the claimant acts reasonably.

4) Entry by licence or permission of the occupier, express or implied. A licence is ‘that consent which, without passing any interest in the property to which it relates, merely prevents the acts for which consent is given from being wrongful’.

5) Peaceable entry on the land by a person entitled to possession of it.

34) Remedies for trespass to land. Damages: An action of ejectment. Injunction. Ejection. Dispossession. Re-entry on land.

(1) Damages.

This is in general the amount by which the value of the property is diminished as a result of the trespass; not the cost of reinstatement.

(4) An action of ejectment

Where trespass consists in entry by cattle or sheep on the land of another, the occupier’s rights are now governed by the Animals Act, 1971, which replaces the common law rules. S. 4(1) provides that where the defendant’s livestock strays on the claimant’s land, the defendant is, generally, liable for the damage done to the land or to the property on it and for any expenses reasonably incurred by the claimant in keeping the livestock, while it cannot be restored to the defendant, or while it is being detained for certain other purposes. S. 7 gives the occupier of land on to which livestock strays limited rights of detention and sale in certain cases.

(2) Injunction.

This may be used to prevent the continuance or repetition of the act of trespass. The claimant may apply to the court for both damages and an injunction.

(3) Ejection.

The occupier of the land may eject a trespasser after they have been requested to leave and allowed peaceably so to do. No more force may be used than is reasonable in the circumstances; otherwise the occupiers themselves may be sued for assault.

Dispossession means wrongfully depriving another of possession of land.

The general rule is that a claimant to possession must prove the claim by the strength of their own title.

Re-entry on land. Where a person is lawfully entitled to take possession of land those rights should be exercised peaceably otherwise they themselves will be rendered liable. Where a person is wrongfully in possession, it is no tort for a person claiming under a legal title to eject the wrongful possessor forcibly, provided that no more force is used on the wrongful possessor or their goods than is reasonably necessary.

35) What is the wrong of trespass to goods?

The wrong of trespass to goods is the intentional or negligent interference with the possession of goods of another. The interference must be direct and forcible (though a mere touching may be trespass). Trespass is actionable per se. An omission does not give rise to an action in trespass unless it was done intentionally or negligently. Accidental touching of goods is not actionable.

36) What actions amount to a tort of conversion? What are the ways in which conversion may be committed?

Conversion is defined as ‘an act or complex series of acts of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it’.

Conversion may be committed in the following ways:

1) By taking. Where A takes chattels out of the possession of B (the true owner) without lawful justification with the intention of exercising dominion over the goods permanently or even temporarily. Every simple theft, as where X steals Y’s jacket, is a conversion. Mere shifting the goods of another, as where a station-porter puts suitcases at the side of a railway platform, may be trespass but not conversion.

2) By detention. Where A detains goods of B in defiance of B’s right to the chattels, B may sue in conversion.

3) By wrongful delivery. If A without lawful justification delivers B’s goods to C (a stranger), A is liable in conversion. Similarly, if a bailee of goods sells them before the period of the bailment has expired, the bailee is rendered liable in conversion.

4) By destruction. The wilful and unlawful destruction of another’s goods amounts to conversion. There must be a complete destruction, mere damage of goods being insufficient.

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