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THE LAW OF TORTS - Naslovnica

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THE LAW OF TORTS
UNIT 15
Lead-in
1.Rememberthe following points about criminal law and procedure: the parties, standard of proof and possible types of punishment. What is the main purpose of criminal proceedings and who are they initiated by?2.Remembersituations where obligations exist between parties to a contract. Can you think of a situation where there is an obligation, but no contract involved?
IIReadthe introductory text on torts and compare a tort to a crime. What are the similarities and differences mentioned or implied in the text?
The law oftortsis an area of civil or private law.Tortsinvolve situations where damage was caused or a wrong committed as a result of unreasonable conduct, unrelated to a contract.Tortious conduct-notsufficientlyserious to constitute a crime, although some torts are in most respects identical to criminal offences.Thelaw of torts concerns ways to compensate for the damage suffered and deter from further harmful activity.Actionis taken by the injured party against thetortfeasor.While torts are increasingly regulated by statute, the rich case law still retains a central role.
The main groups of torts
1.tortsaffecting land,2.tortsaffectingperson,and3.negligence.
Torts affecting land
Torts affecting land pertain to unreasonable conduct or its consequences concerning interest in land, anditsenjoyment and useThemain torts againstland:1.trespassto land2.nuisance
Trespass to land
an unlawful invasion or direct interference with the land of another, whether intentional or negligent.Inpractice:entry or stay without permission on someone’s land or property built on the land.Bybringing an action in tort the claimant may want to remove unwanted intruders from the land, or regain entry to his land from which he has unlawfully been prevented.Thiscan arise when there is dispute as to title, i.e. ownership of the land or property in question.Thisis achieved by aninjunction. If the intruder has caused damage to the property, the claimant may want the damage compensated for.Damagesmay include the cost of removal of the trespasser.
Trespass to land
Trespass is actionableperse:there is no requirement of damage done to the land by the intruder for a lawsuit to be filed.Theinvader must be a person with an inferior interest in the property.A landlordmaysue to evict a tenant in breach of the rental agreement, but a legitimate tenant could equally use an action in tort to remove a trespasser who has no legal claim on the property.
nuisance
Where there is only indirect interference with another’s use or enjoyment of his land, this may constitute grounds for an action innuisance.Thetort of nuisance refers to a disturbance which is continuous and has resulted in damage, usually caused by a neighbour.If only discomfort or inconvenience are caused by another’s actions, this may not sufficiently disturb the balance of competing interests between the neighbours as to their right to use and enjoy their respective land.
nuisance
Nuisance usually involves harmful emissions such as fumes drifting over land, loud noises, vibrations from machinery, water or harmful liquids entering the land or subsoil and causing damage, and fire.Themost common remedy for nuisance is an injunction, which orders the defendant to refrain from the nuisance. Damages may also be sought.
Torts affectingthepersonandcivilliberties
1.trespass to the personand2.defamation.
Trespass to the person
1.assault,2.battery and3.false imprisonment.All three can also be subject to criminal prosecution.
Batteryv.assault
involvesunlawful contact with the body of the claimant, whileassaultconsists of the intentional and direct causing of apprehension and anticipation of battery.Inassault there is no requirement of physical contact, nor must the claimant have suffered damage.However, there must be active threatening behaviour that puts the claimant in fear of possible battery.Waving or pointing a weapon in a threatening manner may constitute assault, as can a prevented or failed attempt to use one.Simplystanding in place without moving is not active behaviour and is not likely to be recognized as assault.Unlawfulcontact with the body of the defendant does not have to cause actual injury.
battery
Battery is often assumed to equal acts of unlawful application of force to the body.However, in some situations,forcedoes not have to be applied at all.Inmedicine, medical treatment that goes beyond what the patient consented to represents battery.In many cases, behaviour that might be construed as battery is in fact justified, for example, if battery was committed in order to prevent greater harm or in self-defence, or if it is used in order to lawfully remove a trespasser.
False imprisonment
Falseimprisonmentisneither false nor must it involve actual imprisonment.‘False’meanswrongful or unlawful, while ‘imprisonment’ refers to any kind of complete deprivation of the freedom of movement.Falseimprisonment is mostly claimed in cases of unlawful arrest and detention, or against police or security officers preventing persons from leaving an area without proper justification.
Defamation
Defamationinvolves making false statements about another person which may harm their reputation.There are two types ofdefamation:1)if defamatory statements are made in a transitory form, e.g. spoken word, they are consideredslander,2)those in a permanent form constitutelibel. Permanent forms include written words, broadcast statements or films. Modern technologies sometimes make this distinction problematic, as in the case of statements in a transitory form recorded by a third person. Libel is actionableper se. The statement must refer to the claimant, contain false information, and be repeated to at least one person.
defamation
Whether a statement is to be considered defamatory depends entirely on the context in which it appears.Itis likely to be accepted as such if it contains vulgar and derogatory remarks or references to the claimant’s moral character.
defamation
Possible remedies against defamation are an injunction and damages.Injunctions are used to prevent the publication or broadcast of defamatory statements. However, they are seldom efficient as the claimant normally learns of the defamatory statements only after they have been made public. In addition, they are often criticized for being tantamount to censorship.Sometimesthere is very little actual damage suffered from the defamation, so onlynominal damagesmay be awarded (e.g. in the amount of £1).Conversely, juries may awardexemplary damagesto punish the defendant and express their contempt for the defamatory act.
IV Decide whether the following statements are true (T) or false (F). If false, provide the correct information.
1. Even though perceptions may differ, all torts are less serious than crimes.2. A lawsuit in trespass is only possible if the intruder has done damage to the property.3. Rent-paying tenants cannot file a trespass lawsuit.4. Loud music coming from a neighbouring flat may constitute grounds for a nuisance lawsuit.5. An injunction is the only legal remedy against nuisance.6. Shooting at someone using a gun without bullets constitutes assault.
Trueorfalse?
7. Battery refers to causing serious physical harm to another person.8. False imprisonment can only be claimed against the police.9. Libel is more serious than slander.10. An injunction is the most efficient legal remedy against defamation.
V Sort the torts described in this text into two columns.
trespass nuisance assault battery false imprisonment libelslander
VI Replace the underlined expressions with expressions from the text.
1. Torts are less serious than crimes, but also refer to unreasonablebehaviourthat usually results ininjury.2. The injured personfiles a lawsuitagainst theperson who has committed the tort.3. Trespass refers toillegal entryinto another’s land.4. The tort of assault entails causingfearof violence
Replace the underlined expressions with expressions from the text
5. False imprisonment involvesloss of freedomand can be claimed in cases ofillegal keeping in custodyby the police.6. If aperson renting a propertyfails to pay the rent, they are considered to be trespassing.7. Slander refers tountrueanddisparagingstatements inimpermanentform.8.Punitivedamages may beordered to be paidon top of general damages in order to punish the defendant.
VII Complete the chart
Analyzethe following case summaries and decide whether they constitute trespass. Discuss with a partner whether the legal requirements are met. Substantiate your answers.
a. Police officers forcibly entered the defendant's premises in order to search for documents. They were operating under a warrant issued by the Secretary of State. The Secretary of State does not have the power to issue search warrants. (Entickv Carrington, 1765)b. A neighbour's grass was cut and carried away by mistake. (Basely v Clarkson, 1681)c. The claimant's gas and electricity metres were placed in the defendant's cellar. Without the claimant's permission, the defendant turned them off cutting off both supplies (PereravVandiyar, 1953)d. The defendant neighbour was carrying out construction work on his land. His crane swung out over the claimant neighbour's land. (Woolerton& Wilson v RichardCostainLtd, 1970)
Analyzethe following case summaries and decide whether they constituteNUISANCE.Discuss with a partner whether the legal requirements are met. Substantiate your answers.
a. The owner of a plot of land allowed go-kart racing to take place on it. Neighbours claimed nuisance. (Tetley v Chitty, 1986)b. A local authority leased a flat to a problematic family. The authority knew that the family might cause problems. The family did ultimately commit several grave acts of nuisance. The neighbours sued the local authority. (Smith v Scott and others, 1973)c. Unknown persons blocked a drainpipe on the defendant's land. He knew about it but didn't do anything. The blockage caused flooding which damaged a neighbour's property. (SedleighDenfieldv O'Callaghan, 1940)d. The claimant lived close to a busy by-pass. Loud traffic noise could be heard constantly. (Murdoch v Glacier Metal Co. Ltd, 1998)
Analyzethe following case summaries and decide whether they constitute trespass. Discuss with a partner whether the legal requirements are met. Substantiate your answers.
e. Power cables running over a house caused bad television reception. (Bridlington Relay Ltd v Yorkshire Electricity Board, 1965)f. The defendant, annoyed by the music lessons in the adjacent flat, banged on walls, beat metal trays against it and shouted. (Christie V Davey, 1893)
discussion
False imprisonment is often claimed against the police officers. Why do you think this is an important tort? What does it protect? Can you think of other situations where false imprisonment might be claimed?Assault and battery are also criminal offences. What is the point of these acts being punishable both under criminal law and under tort law? Think of all the possible reasons.
PartTwo:Defamation and Freedom of Expression
I Discuss these questions with a partner.1. Defamation lawsuits are not uncommon in Croatia, either. Do you know of any cases or at least public threats of defamation lawsuits? Who do they tend to be made by?2. In your opinion, can the threat of a defamation of lawsuit limit free speech? What stance should the courts take in adjudicating defamation lawsuits?
PRESS RELEASEDefamation laws take effect
Libel laws in England and Wales are being significantly reformed from tomorrow to provide clearer, better protection for people publicly expressing opinions.The Defamation Act 2013 reverses the chilling effect on freedom of expression current libel law has allowed, and the prevention of legitimate debate we have seen in the past. For example, some journalists, scientists or academics have faced unfair legal threats for fairly criticising a company, person or product.For the first time a new serious harm threshold has been set to help people understand when claims should be brought and discourage trivial claims that harm freedom of speech and unnecessarily take up court time.
PRESS RELEASEDefamation laws take effect
Justice MinisterShaileshVarasaid:The introduction of these new measures will make it harder for wealthy people or companies to bully or silence those who may have fairly criticised them or their products.As a result of these new laws, anyone expressing views and engaging in public debate can do so in the knowledge that the law offers them stronger protection against unjust and unfair threats of legal action.These laws coming into force represent the end of a long and hard-fought battle to ensure a fair balance is struck between the right to freedom of expression and people’s ability to protect theirreputation.
PRESS RELEASEDefamation laws take effect
The Defamation Act contains a series of measures that include:· Protection for scientists and academics publishing peer reviewed material in scientific and academic journals· Protection for those who are publishing material on a matter of public interest where they reasonably believe that publication is in the public interest
PRESS RELEASEDefamation laws take effect
Introducing a new process which should help a person who feels an online statement is defamatory to resolve the dispute directly with the person who has posted the statement. This offers better protection for the operators of websites hosting user-generated content, provided they follow the new process. New regulations have been introduced to ensure that this process operates effectivelyAsingle publication rule to prevent repeated claims against a publisher about the same materialActionto address libel tourism by tightening the test for claims involving those with little connection to England and Wales being brought before our courtsGreaterprotection for secondary publishers including booksellers and newsagents by removing the possibility of an action for defamation being brought against them if it is reasonably practicable for an action to be brought against the primary publisher.
PRESS RELEASEDefamation laws take effect
The old laws on libel had been criticised for being outdated, costly and unfair - the new law seeks to ensure effective protection for freedom of expression and encourages open and honest public debate, whilst still protecting those whose reputation has been unjustly attacked.
III What do the underlined expressions from the text mean? Work with a partner to provide examples.
1. “… new measures will make it harder for wealthy people or companies tobully or silencethose who may have fairly criticised them or their products”2. “…trivial claimsthat harm freedom of speech and unnecessarily take up court time”
IV Work in pairs and taketurnsto explain the following key expressions from the text.
peer-reviewed material public interest user-generated contentsingle publication rule libel tourism secondary publishers
Summary
V Use the key expressions fromthepreviousexercise to tell your partner in your own words about the most important novelties of the new Defamation Act.
VI Read Section 2 of the Act, which regulates the defence of ‘Truth’. Answer the questions below.
2 Truth(1) It is a defence to an action for defamation for the defendant to show that theimputationconveyedby the statement complained of issubstantiallytrue.(2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or moredistinctimputations.(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.(4) The common law defence of justification isabolishedand, accordingly, section 5 of the Defamation Act 1952 (justification) isrepealed.
Find synonyms of the following words in the text. The corresponding synonyms are underlined.
a. separate (adj.),b. largely, for the most part,c. rescinded or annulled (2 answers),d. accusation, suggestion, implication,e. communicated.
Explainthefollowing:
2. Explain the defence of truth in your own words.3. Subsection 4 refers to a ‘common law defence’. What do you think that means?
DISCUSSION
VII Read Section 1 of the Defamation Act 2013, which defines ‘serious harm’ referred to in the text and discuss its meaning. Comment on the position of corporations with regard to this provision. Do you think the level of protection for corporations has been raised or lowered by this provision? What possible problems in adjudication can you anticipate?
Section 1 of the Defamation Act 2013
1 Serious harm(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.
research
1. Find information about the famous criminal case People of the State of California vsOrenthalJames Simpson (1995) and the ensuing civil trial Goldman vs Simpson (1997). Focus on the parties, claims and judgments in each case. What are the principal differences and what are the connecting factors between these cases?These lawsuits are a good example of how the same act can lead to criminal prosecution, and also a civil trial. Think of all the possible reasons why the civil trial was initiated (if necessary, refer to Unit 6, Part two, where the basic differences between criminal and civil trials are explained). Consider the remedies, the procedure and the standard of proof.
research
2. The text ‘Defamation laws takes effect’ refers to the ‘chilling effect’ of the old law on defamation. The expression refers to an undesirable effect (e.g. of a law) that discourages the exercise of a certain right. Discuss with a partner possible laws in your country that might have this effect. What do you know about the law of defamation in Croatia? Does it have a chilling effect? Is the balance between the protection of reputation and the freedom of speech well struck in your opinion?
research
3. Find out about some defamation lawsuits in Croatia that received public attention. Who were the parties? What statements were the lawsuits about? What were the rulings?

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THE LAW OF TORTS - Naslovnica