Law of Torts Unit III

Defamation

There is always a delicate balance between one person’s right to freedom of speech and another’s right to protect their good name. It is often difficult to know which personal remarks are proper and which run afoul of defamation law.

The term “defamation” is an all-encompassing term that covers any statement that hurts someone’s reputation. If the statement is made in writing and published, the defamation is called “libel.” If the hurtful statement is spoken, the statement is “slander.” The government can’t imprison someone for making a defamatory statement since it is not a crime. Instead, defamation is considered to be a civil wrong, or a tort. A person that has suffered a defamatory statement may sue the person that made the statement under defamation law.

Defamation law, for as long as it has been in existence in the United States, has had to walk a fine line between the right to freedom of speech and the right of a person to avoid defamation. On one hand, people should be free to talk about their experiences in a truthful manner without fear of a lawsuit if they say something mean, but true, about someone else. On the other hand, people have a right to not have false statements made that will damage their reputation. Discourse is essential to a free society, and the more open and honest the discourse, the better for society.

Elements of a Defamation Lawsuit

Defamation law changes as you cross state borders, but there are normally some accepted standards that make laws similar no matter where you are. If you think that you have been the victim of some defamatory statement, whether slander or libel, then you will need to file a lawsuit in order to recover. Generally speaking, in order to win your lawsuit, you must show that:

  1. Someone made a statement;
  2. that statement was published;
  3. the statement caused you injury;
  4. the statement was false; and
  5. the statement did not fall into a privileged category.

To get a better grasp of what you will need to do to win your defamation lawsuit, let’s look at each element more closely.

The Statement — A “statement” needs to be spoken, written, or otherwise expressed in some manner. Because the spoken word often fades more quickly from memory, slander is often considered less harmful than libel.

Publication — For a statement to be published, a third party must have seen, heard or read the defamatory statement. A third party is someone apart from the person making the statement and the subject of the statement. Unlike the traditional meaning of the word “published,” a defamatory statement does not need to be printed in a book. Rather, if the statement is heard over the television or seen scrawled on someone’s door, it is considered to be published.

Injury — To succeed in a defamation lawsuit, the statement must be shown to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement. As an example, a statement has caused injury if the subject of the statement lost work as a result of the statement.

Falsity — Defamation law will only consider statements defamatory if they are, in fact, false. A true statement, no matter how harmful, is not considered defamation. In addition, because of their nature, statements of opinion are not considered false because they are subjective to the speaker.

Unprivileged — Lastly, in order for a statement to be defamatory, it must be unprivileged. Lawmakers have decided that you cannot sue for defamation in certain instances when a statement is considered privileged. For example, when a witness testifies at trial and makes a statement that is both false and injurious, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged.

Whether a statement is privileged or unprivileged is a policy decision that rests on the shoulders of lawmakers. The lawmakers must weigh the need to avoid defamation against the importance that the person making the statement have the free ability to say what they want.

Witnesses on the stand at trial are a prime example. When a witness is giving his testimony, we, as a society, want to ensure that the witness gives a full account of everything without holding back for fear of saying something defamatory. Likewise, lawmakers themselves are immune from defamation suits resulting from statements made in legislative chamber or in official materials.

Social Media and Defamation

With the rise of social media, it’s now easier than ever to make a defamatory statement. That’s because social media services like Twitter and Facebook allow you to instantly “publish” a statement that can reach thousands of people. Whether it’s a disparaging blog post, Facebook status update, or YouTube video, online defamation is treated the same way as more traditional forms. That means you can be sued for any defamatory statements you post online.

Higher Burdens for Defamation — Public Officials and Figures

Our government places a high priority on the public being allowed to speak their mind about elected officials as well as other public figures. People in the public eye get less protection from defamatory statements and face a higher burden when attempting to win a defamation lawsuit.

When an official is criticized in a false and injurious way for something that relates to their behavior in office, the official must prove all of the above elements associated with normal defamation, and must also show that the statement was made with “actual malice.”

“Actual malice” was defined in a Supreme Court case decided in 1964, Hustler v. Falwell. In that case, the court held that certain statements that would otherwise be defamatory were protected by the First Amendment of the United States Constitution. The court reasoned that the United States society had a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

This meant, according to the Court, that public officials could only win a defamation suit when the statement that was made was not an honest mistake and was in fact published with the actual intent to harm the public figure. According to the Court, actual malice only occurs when the person making the statement knew the statement was not true at the time he made it, or had reckless disregard for whether it was true or not.

For other people that are in the public eye, but not public officials, the defamation laws are also different. These people, such as celebrities and movie stars, must also prove, in most situations, that the defamatory statements were made with actual malice.

Freedom of speech is less meaningful when a statement is made about a private individual because the statement is probably not about a matter of public importance. As noted above, a private person has no need to show that the statement maker acted with actual malice in order to be victorious in their defamation lawsuit

Negligence

Negligence (Lat. negligentia, from neglegere, to neglect, literally “not to pick up something”) is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.

According to Jay M. Feinman of the Rutgers University School of Law;

“The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause harm to other people.”

Through civil litigation, if an injured person proves that another person acted negligently to cause their injury, they can recover damages to compensate for their harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must be proven in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases.

 

Elements of negligence claims

Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes (see Element (criminal law)). An important concept related to elements is that if a plaintiff fails to prove any one element of his claim, he loses on the entire tort claim. For example, assume that a particular tort has five elements. Each element must be proven. If the plaintiff proves only four of the five elements, the plaintiff has not succeeded in making out his claim.

Common law jurisdictions may differ slightly in the exact classification of the elements of negligence, but the elements that must be established in every negligence case are: duty, breach, causation, and damages. Each is defined and explained in greater detail in the paragraphs below. Negligence can be conceived of as having just three elements – conduct, causation and damages. More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking. “The broad agreement on the conceptual model”, writes Professor Robertson of the University of Texas, “entails recognition that the five elements are best defined with care and kept separate. But in practice”, he goes on to warn, “several varieties of confusion or conceptual mistakes have sometimes occurred.”

Duty of care

Main article: Duty of care

A decomposed snail in Scotland was the humble beginning of the modern English law of negligence

The case of Donoghue v. Stevenson [1932] illustrates the law of negligence, laying the foundations of the fault principle around the Commonwealth. The Pursuer, May Donoghue, drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer, a certain David Stevenson in Scotland. While drinking the drink, Donoghue discovered the remains of an allegedly decomposed slug. She then sued Stevenson, though there was no relationship of contract, as the friend had made the payment. As there was no contract the doctrine of privity prevented a direct action against Stevenson.

In his ruling, justice Lord MacMillan defined a new category of delict (the Scots law nearest equivalent of tort), (which is really not based on negligence but on what is now known as the “implied warranty of fitness of a product” in a completely different category of tort–“products liability”) because it was analogous to previous cases about people hurting each other. Lord Atkin interpreted the biblical passages to ‘love thy neighbour,’ as the legal requirement to ‘not harm thy neighbour.’ He then went on to define neighbour as “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 that are called in question.” Reasonably foreseeable harm must be compensated. This is the first principle of negligence.

In England the more recent case of Caparo v. Dickman [1990] introduced a ‘threefold test’ for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be ‘fair, just and reasonable’ to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.

Breach of duty

See also: Breach of duty in English law

In Bolton v. Stone the English court was sympathetic to cricket players

Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person [objective] in the same situation would clearly have realized, also breaches that duty.

Breach of duty is not limited to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property. A person who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care. An example is shown in the facts of Bolton v. Stone,  a 1951 legal case decided by the House of Lords which established that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside her house. Cricket balls were not normally hit a far enough distance to pose a danger to people standing as far away as was Miss Stone. Although she was injured, the court held that she did not have a legitimate claim because the danger was not sufficiently foreseeable. As stated in the opinion, ‘Reasonable risk’ cannot be judged with the benefit of hindsight. As Lord Denning said in Roe v. Minister of Health, the past should not be viewed through rose coloured spectacles. Therefore, there was no negligence on the part of the medical professionals in a case faulting them for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contamination. Even if some were harmed, the professionals took reasonable care for risk to their patients.

  • United States v. Carroll Towing Co. 159 F.2d 169 (2d. Cir. 1947)

Factual causation (Direct Cause)

For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one’s breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred but for, or without, the accused party’s breach of the duty owed to the injured party. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.

Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business.

Legal causation or remoteness

Negligence can lead to this sort of collision – a train wreck at Gare Montparnasse in 1895.

Sometimes factual causation is distinguished from ‘legal causation’ to avert the danger of defendants being exposed to, in the words of Cardozo, J., “liability in an indeterminate amount for an indeterminate time to an indeterminate class.” It is said a new question arises of how remote a consequence a person’s harm is from another’s negligence. We say that one’s negligence is ‘too remote’ (in England) or not a ‘proximate cause’ (in the U.S.) of another’s harm if one would ‘never’ reasonably foresee it happening. Note that a ‘proximate cause’ in U.S. terminology (to do with the chain of events between the action and the injury) should not be confused with the ‘proximity test’ under the English duty of care (to do with closeness of relationship). The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible? For instance, in Palsgraf v. Long Island Rail Road Co. the judge decided that the defendant, a railway, was not liable for an injury suffered by a distant bystander. The plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a train platform. The scales fell because of a far-away commotion. A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. As a consequence, the scales fell. Because Palsgraf was hurt by the falling scales, she sued the train company who employed the conductor for negligence.

The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff’s injury. On appeal, the majority of the court agreed, with four judges adopting the reasons, written by Judge Cardozo, that the defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs. Three judges dissented, arguing, as written by Judge Andrews, that the defendant owed a duty to the plaintiff, regardless of foreseeability, because all men owe one another a duty not to act negligently.

Such disparity of views on the element of remoteness continues to trouble the judiciary. Courts that follow Cardozo’s view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury. Cardozo’s view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury.

Remoteness takes another form, seen in The Wagon Mound (No. 1).[11] The Wagon Mound was a ship in Sydney harbour. The ship leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf.

The UK House of Lords determined that the wharf owner ‘intervened’ in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner.

In Australia, the concept of remoteness, or proximity, was tested with the case of Jaensch v. Coffey. The wife of a policeman, Mrs Coffey suffered a nervous shock injury from the aftermath of a motor vehicle collision although she was not actually at the scene at the time of the collision. The court upheld in addition to it being reasonably foreseeable that his wife might suffer such an injury, it also required that there be sufficient proximity between the plaintiff and the defendant who caused the collision. Here there was sufficient causal proximity. Also see the case of Kavanagh v Akhtar

Harm

Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover unless he can prove that the defendant’s breach caused a pecuniary injury. This should not be mistaken with the requirements that a plaintiff prove harm to recover. As a general rule, a plaintiff can only rely on a legal remedy to the point that he proves that he suffered a loss. It means something more than pecuniary loss is a necessary element of the plaintiff’s case in negligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any loss; he would be entitled to nominal damages and any other damages according to proof. Negligence is different in that the plaintiff must prove his loss, and a particular kind of loss, to recover. In some cases, a defendant may not dispute the loss, but the requirement is significant in cases where a defendant cannot deny his negligence, but the plaintiff suffered no loss as a result. If the plaintiff can prove pecuniary loss, then he can also obtain damages for non-pecuniary injuries, such as emotional distress.

The requirement of pecuniary loss can be shown in a number of ways. A plaintiff who is physically injured by allegedly negligent conduct may show that he had to pay a medical bill. If his property is damaged, he could show the income lost because he could not use it, the cost to repair it, although he could only recover for one of these things.

The damage may be physical, purely economic, both physical and economic (loss of earnings following a personal injury), or reputational (in a defamation case).

In English law, the right to claim for purely economic loss is limited to a number of ‘special’ and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisers, and other professions where money is central to the consultative services.

Emotional distress has been recognized as an actionable tort. Generally, emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury.

A claimant who suffered only emotional distress and no pecuniary loss would not recover for negligence. However, courts have recently allowed recovery for a plaintiff to recover for purely emotional distress under certain circumstances. The state courts of California allowed recovery for emotional distress alone – even in the absence of any physical injury, when the defendant physically injures a relative of the plaintiff, and the plaintiff witnesses it.

Damages

Damages place a monetary value on the harm done, following the principle of restitutio in integrum (Latin for “restoration to the original condition”). Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim.

One of the main tests that is posed when deliberating whether a claimant is entitled to compensation for a tort, is the “reasonable person”. The test is self-explanatory: would a reasonable person (as determined by a judge or jury) be damaged by the breach of duty. Simple as the “reasonable person” test sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge or the jury that can be based on limited facts. However, as vague as the “reasonable person” test seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation for a negligence tort.

Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant’s losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant’s negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort.

Types of damage

  • Special damages – quantifiable dollar losses suffered from the date of defendant’s negligent act (the tort) up to a specified time (proven at trial). Special damage examples include lost wages, medical bills, and damage to property such as one’s car.
  • General damages – these are damages that are not quantified in monetary terms (e.g., there’s no invoice or receipt as there would be to prove special damages). A general damage example is an amount for the pain and suffering one experiences from a car collision. Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses, the court or jury may award nominal damages.
  • Punitive damages – Punitive damages are to punish a defendant, rather than to compensate plaintiffs, in negligence cases. In most jurisdictions punitive damages are recoverable in a negligence action, but only if the plaintiff shows that the defendant’s conduct was more than ordinary negligence (i.e., wanton and willful or reckless).

Procedure in the United States

The plaintiff must prove each element to win his case. Therefore, if it is highly unlikely that the plaintiff can prove one of the elements, the defendant may request judicial resolution early on, to prevent the case from going to a jury. This can be by way of a demurrer, motion to dismiss, or motion for summary judgment. The ability to resolve a negligence case without trial is very important to defendants. Without the specific limits provided by the four elements, any plaintiff could claim any defendant was responsible for any loss, and subject him to a costly trial.[15]

The elements allow a defendant to test a plaintiff’s accusations before trial, as well as providing a guide to the “finder of fact” (jury) to decide whether the defendant is or is not liable, after the trial. Whether the case is resolved with or without trial again depends heavily on the particular facts of the case, and the ability of the parties to frame the issues to the court. The duty and causation elements in particular give the court the greatest opportunity to take the case from the jury, because they directly involve questions of policy. The court can find that regardless of the disputed facts, if any, the case can be resolved as a matter of law from undisputed facts, because two people in the position of the plaintiff and defendant simply cannot be legally responsible to one another for negligent injury.

On appeal, the court reviewing a decision in a negligence case will analyze in terms of at least one of these elements, depending on the disposition of the case and the question on appeal. For example, if it is an appeal from a final judgment after a jury verdict, the reviewing court will look to see that the jury was properly instructed on each contested element, and that the record shows sufficient evidence for the jury’s findings. On an appeal from a dismissal or judgment against the plaintiff without trial, the court will review de novo whether the court below properly found that the plaintiff could not prove any or all of his case.

Nuisance

Nuisance (from archaic nocence, through Fr. noisancenuisance, from Lat. nocere, “to hurt”) is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also “common”) or private. A public nuisance was defined by English scholar Sir J. F. Stephen as,

“an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects”.

Private nuisance is the interference with the right of specific people. Nuisance is one of the oldest causes of action known to the common law, with cases framed in nuisance going back almost to the beginning of recorded case law. Nuisance signifies that the “right of quiet enjoyment” is being disrupted to such a degree that a tort is being committed.

Under the common law, persons in possession of real property (land owners, lease holders etc.) are entitled to the quiet enjoyment of their lands. However this doesn’t include visitors or those who aren’t considered to have an interest in the land. If a neighbour interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance.

Legally, the term nuisance is traditionally used in three ways:

  1. to describe an activity or condition that is harmful or annoying to others (e.g., indecent conduct, a rubbish heap or a smoking chimney)
  2. to describe the harm caused by the before-mentioned activity or condition (e.g., loud noises or objectionable odors)
  3. to describe a legal liability that arises from the combination of the two. However, the “interference” was not the result of a neighbor stealing land or trespassing on the land. Instead, it arose from activities taking place on another person’s land that affected the enjoyment of that land.

The law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (i.e., private nuisance) or with the rights of the general public (i.e., public nuisance)

A public nuisance is an unreasonable interference with the public’s right to property. It includes conduct that interferes with public health, safety, peace or convenience. The unreasonableness may be evidenced by statute, or by the nature of the act, including how long, and how bad, the effects of the activity may be.

A private nuisance is simply a violation of one’s use of quiet enjoyment of land. It doesn’t include trespass.

To be a nuisance, the level of interference must rise above the merely aesthetic. For example: if your neighbour paints their house purple, it may offend you; however, it doesn’t rise to the level of nuisance. In most cases, normal uses of a property that can constitute quiet enjoyment cannot be restrained in nuisance either. For example, the sound of a crying baby may be annoying, but it is an expected part of quiet enjoyment of property and does not constitute a nuisance.

Any affected property owner has standing to sue for a private nuisance. If a nuisance is widespread enough, but yet has a public purpose, it is often treated at law as a public nuisance. Owners of interests in real property (whether owners, lessors, or holders of an easement or other interest) have standing only to bring private nuisance suits.

History and legal development of nuisance

In the late 19th and early 20th centuries, the law of nuisance became difficult to administer, as competing property uses often posed a nuisance to each other, and the cost of litigation to settle the issue grew prohibitive. As such, most jurisdictions now have a system of land use planning (e.g. zoning) that describes what activities are acceptable in a given location. Zoning generally overrules nuisance. For example: if a factory is operating in an industrial zone, neighbours in the neighbouring residential zone can’t make a claim in nuisance. Jurisdictions without zoning laws essentially leave land use to be determined by the laws concerning nuisance.

Similarly, modern environmental laws are an adaptation of the doctrine of nuisance to modern complex societies, in that a person’s use of his property may harmfully affect another’s property, or person, far from the nuisance activity, and from causes not easily integrated into historic understandings of nuisance law.

Remedies

Under the common law, the only remedy for a nuisance was the payment of damages. However, with the development of the courts of equity, the remedy of an injunction became available to prevent a defendant from repeating the activity that caused the nuisance, and specifying punishment for contempt if the defendant is in breach of such an injunction.

The law and economics movement has been involved in analyzing the most efficient choice of remedies given the circumstances of the nuisance. In Boomer v. Atlantic Cement Co. a cement plant interfered with a number of neighbors, yet the cost of complying with a full injunction would have been far more than a fair value of the cost to the plaintiffs of continuation. The New York court allowed the cement plant owner to ‘purchase’ the injunction for a specified amount—the permanent damages. In theory, the permanent damage amount should be the net present value of all future damages suffered by the plaintiff.

Inspector of Nuisances

An Inspector of Nuisances was the title of an office in several English-speaking jurisdictions. In many jurisdictions this term is now archaic, the position and/or term having been replaced by others. In the United Kingdom from the mid 19th century this office was generally associated with public health and sanitation.

The first Inspector of Nuisances appointed by a UK local authority Health Committee was Thomas

Fresh in Liverpool in 1844. Both the 1855 Nuisances Removal and Diseases Prevention Act and the Metropolis Management Act 1855 defined such an office but with the title of ‘Sanitary Inspector’. In local authorities that had established a Board of Health, the title was ‘Inspector of Nuisances’. Eventually the title was standardized across all UK local authorities as ‘Sanitary Inspector’. An Act of Parliament later changed the title to ‘Public Health Inspector’. Similar offices were established across the British Empire.

The nearest modern equivalent of this position in the UK is the Environmental Health Officer. This title being adopted by local authorities on the recommendation of Central Government after the Local Government Act 1972. Today, Registered UK Environmental Health Officers working in nonenforcement roles (eg in the private sector) may prefer to use the generic term ‘Environmental Health Practitioner’.

In the United States, a modern example of an officer with the title ‘Inspector of Nuisances’ but not the public health role is found in Section 3767[7] of the Ohio Revised Code which defines such a position to investigate nuisances, where this term broadly covers establishments in which lewdness and alcohol are found. Whereas in the United States the environmental health officer role is undertaken by local authority officers with the titles ‘Registered Environmental Health Specialist’ or ‘Registered Sanitarian’ depending on the jurisdiction.

Law related to nuisance, by country

United Kingdom

The boundaries of the tort are potentially unclear, due to the public/private nuisance divide, and existence of the rule in Rylands v Fletcher. Writers such as John Murphy of the University of Manchester have popularised the idea that Rylands forms a separate, though related, tort. This is still an issue for debate, and is rejected by others (the primary distinction in Rylands concerns ‘escapes onto land’, and so it may be argued that the only difference is the nature of the nuisance, not the nature of the civil wrong.)

Under English law, unlike US law, it is no defence that the claimant “came to the nuisance”: the 1879 case of Sturges v Bridgman is still good law, and a new owner can bring a claim in nuisance for the existing activities of a neighbour.

Environmental nuisance

In the field of environmental science, there are a number of phenomena which are considered nuisances under the law, including most notably noise and light pollution. Moreover there are some issues that are not necessarily legal matters that are termed environmental nuisance; for example, an excess population of insects or other vectors may be termed a “nuisance population” in an ecological sense.

From Britannica 1911

A common nuisance is punishable as a misdemeanour at common law, where no special provision is made by statute. In modern times, many of the old common law nuisances have been the subject of legislation. It’s no defence for a master or employer that a nuisance is caused by the acts of his servants, if such acts are within the scope of their employment, even though such acts are done without his knowledge, and contrary to his orders. Nor is it a defence that the nuisance has been in existence for a great length of time, for no lapse of time will legitimate a public nuisance.

A private nuisance is an act, or omission, which causes inconvenience or damage to a private person, and is left to be redressed by action. There must be some sensible diminution of these rights affecting the value or convenience of the property. “The real question in all the cases is the question of fact, whether the annoyance is such as materially to interfere with the ordinary comfort of human existence” (Lord Romilly in Crump v. Lambert (1867) L.R. 3 Eq. 409). A private nuisance, differing in this respect from a public nuisance, may be legalized by uninterrupted use for twenty years. It used to be thought that, if a man knew there was a nuisance and went and lived near it, he couldn’t recover, because, it was said, it is he that goes to the nuisance, and not the nuisance to him. But this has long ceased to be law, as regards both the remedy by damages, and the remedy by injunction.

The remedy for a public nuisance is by information, indictment, summary procedure or abatement. An information lies in cases of great public importance, such as the obstruction of a navigable river by piers. In some matters, the law allows the party to take the remedy into his own hands, and to “abate” the nuisance. Thus; if a gate be placed across a highway, any person lawfully using the highway may remove the obstruction, provided that no breach of the peace is caused thereby. The remedy for a private nuisance is by injunction, action for damages or abatement. An action lies in every case for a private nuisance; it also lies where the nuisance is public, provided that the plaintiff can prove that he has sustained some special injury. In such a case, the civil is in addition to the criminal remedy. In abating a private nuisance, care must be taken not to do more damage than is necessary for the removal of the nuisance.

In Scotland, there’s no recognized distinction between public and private nuisances. The law as to what constitutes a nuisance is substantially the same as in England. A list of statutory nuisances will be found in the Public Health (Scotland) Act 1867, and amending acts. The remedy for nuisance is by interdict, or action

Battery/Mayhem

Battery is the intentional and direct application of any physical force to the person of another. It is the actual striking of another person, or touching him in a rude, angry, revengeful , or insolent manner. Battery includes an assault which briefly stated in an act evidencing an immediate intention to commit a battery. It is mainly distinguishable from an assault in the fact that physical contact is necessary to accomplish it. It does not matter whether the force is applied directly to the human body itself or to anything coming in contact with it.

e.g. 

(i) to throw water at a person is assault; if any drop fall upon him it is a battery,

(ii) Riding a horse towards a person is assault; riding it against him is a battery.

Assault

An assault is an attempt or a threat to do a corporeal hurt to another, coupled with an apparent present ability and intention to do the act. Actual contact is not necessary in an assault. Any gesture calculated to excite in the party threatened a reasonable apprehension that the party threatening intends immediately to offer violence, or, in the language of the Indian Penal Code, is ‘about to use criminal force’ to the person threatened , constitutes assault. It coupled with a present to ability to carry such intention in execution is an assault in law.

Essentials

  • The defendant by his act creates an apprehension in the mind of the plaintiff.
  • It consists of an attempt, more than the harm.e.g.
  • A friendly pat on the shoulder or back doesn’t constitute assault.
  • A advance towards B with clenched fists, but is stopped by C. An assault has been committed

False Imprisonment

False imprisonment involves intentional interference with a person’s freedom of movement. Many people regard liberty or freedom of the individual as a fundamental political right. Hence the policy of the law is that imposing restraints or restrictions on that freedom is wrong. It is a legally actionable wrong and thus a tort. However, there are some exceptions, as you will see.

In this unit we will also look at other torts which are often grouped with false imprisonment, because all in some sense involve abuse of legal process. These other torts are malicious prosecutionmaintenance and champerty.

Learning objectives

When you have completed this unit, you should be able to:

  • identify the key elements in the tort of false imprisonment;
  • apply relevant principles of law to factual situations in relation to false imprisonment;
  • list possible defences to false imprisonment; and
  • analyse torts concerned with abuse of legal process, such as malicious prosecution, maintenance and champerty.

Principle of False Imprisonment

We now introduce you to the principles of false imprisonment* through examples and relevant cases.

Total restriction on freedom of movement

In order for an act to amount to the tort of false imprisonment, the restriction on a person’s freedom of movement must be total or comprehensive. If there is some reasonable opportunity available for escape, then the courts will hold that a person has not been falsely imprisoned.

The first two examples provide a contrast in terms of how much a person’s freedom of movement is restricted.

Example 4.1: Detention in a speeding car

Suppose a driver stops to pick up a hitch-hiker. The hitch-hiker gets in the car and the driver drives on. After some talk in the car, the hitch-hiker decides that the driver is a strange person. She says, “I want to get out of the car now”. The driver says nothing, but speeds up the car. The hitch-hiker again demands to be allowed out of the car. The driver speeds up even more. After more protests by the hitch-hiker, the driver says, “I am in a hurry. I cannot stop now to waste time on you. If you want to get out, then jump out the door.” The car is by now doing 120 kilometres per hour.

“Opportunity to escape” as a defence

Has the driver falsely imprisoned the hitch-hiker? In his defence, the driver will say that he allowed the hitch-hiker the opportunity to escape. He knew that she did not want to remain in the car any longer but, in his view, he had his own convenience to consider first. He was in a hurry. He told her how she could get out of the car. How could he have wrongfully detained her, if he allowed her to jump out at any time?

That is not a reasonable argument. From the time when the hitch-hiker said she wanted to get out, the driver had the power to stop the car and let her out. It was his car and he was in control. Matters of inconvenience that the driver raised are not serious enough to outweigh a person’s right to liberty and freedom of movement. The hitch-hiker was being detained in a particular place against her will. That is false imprisonment.

Was detention total?

But was the detention* in that place (i.e. the car) total? Can we accept the driver’s argument that there was an opportunity to escape? In one sense there was, but it was an opportunity which the hitchhiker could only take at the risk of death or serious injury. The opportunity provided must be reasonable, such that it allows the person to take an action which:

  • a reasonable person would or could do in the circumstances; and
  • the person could do without serious risk of injury or damage.

Contrast the first example with the following situation.

Example 4.2: Prevention from walking along a public road

You are walking along a road with the intention of going for a hike through a nearby parkland. You come to an intersection in the road. You want to go straight ahead because that is the shortest way to get to the parkland. However, much to your alarm, you find that a number of bulldozers and men have blocked off the roadway. One of the men says to you that you cannot go any further along that road, as they are about to start work nearby and they don’t want anybody interfering with their preparations. You say, “You are not council employees or police officers. You cannot stop me. I have the right to go along this public road. I want to get to the parkland. This is the shortest route. Let me through, you fools!”

One of the men replies, “You are not coming through here. If you try, we will put you underneath one of these bulldozers. You can take the alternative road to the left here. It will only take you a couple of hours of extra walking. It should improve your fitness. Anyway you look as if you need a bit of exercise. Get lost. You are not getting in here.”

You say, “You don’t scare me one bit, but I will go the other way anyway in protest. You have interfered with my freedom of movement and you will hear from my lawyers tomorrow (Monday).” You then leave by the other route to go off to the parkland.

What are you rights in tort?

Now, what rights if any do you have in tort? You might think about assault, but if you understood unit 3 thoroughly, you should know that it is unlikely that the workers will be liable for assault. They made a conditional threat—”If you do this, then we will do so and so!” Your response was “You don’t scare me!” Where is your apprehension of injury? Thus you would have some problems in bringing an assault case.

However, if you understood unit 1 thoroughly, you might be wondering about the tort of public nuisance in this case. If you are thinking that it was probably a public nuisance to obstruct a person’s public right of access on a public highway, then you are correct. But we are not concerned with this tort at this stage.

Confinement in a particular place

Is it false imprisonment? Your lawyer tells you yes. There is nothing worse than a bad lawyer! She is wrong. It is not false imprisonment at all. Why? Because false imprisonment is not concerned with blocking a person’s access to somewhere he or she wants to go. It is about confining or detaining a person in a particular place against his or her will.

Certainly, in this instance, people prevented you from gaining a particular means of public access. They stopped you from going somewhere. They inconvenienced you considerably. They denied you the opportunity to go specifically where you wanted to go and as a result you had to make other choices about where you went.

But none of that amounts to false imprisonment. You cannot say that you were detained or confined in a particular place against your will. We can describe this situation by saying:

  • the workers did not confine you in a particular place at all; or
  • the workers presented you with several alternatives for escape—”Go left, go right, go backwards”. It might have been inconvenient but causing inconvenience is not enough to establish false imprisonment.

Malicious Prosecution

Malicious prosecution* is a tort which is sometimes grouped together with others as torts involving an abuse of legal process. It is similar to false imprisonment in the sense that false imprisonment, and other trespasses, can involve a breach of legal process in some sense. For example, if police officers abuse their powers of arrest and detain a suspect without proper legal authority to do so, they have abused proper legal process in a way.

But there are also notable differences between malicious prosecution and false imprisonment, especially in terms of the traditional approach to them. Malicious prosecution, traditionally, was an indirect tort that arose from an action on the case. In contrast, false imprisonment was traditionally a direct form of wrongdoing and therefore a trespass. No doubt this difference has become somewhat confused with the more recent shift from direct versus indirect to intentional versus unintentional torts.

Elements of malicious prosecution

So what are the elements of the tort of malicious prosecution? A person causes a prosecution to be brought against a particular individual by providing information. Prosecution here means the launch of official criminal proceedings. It does not include civil proceedings (such as in tort, contract etc.). There is authority that it might include bankruptcy proceedings or proceedings to wind up a company.

In order for a person to be successful in an action for malicious prosecution (where he or she was the defendant), the plaintiff in this action must show that:

  • there was no reasonable or probable cause for the plaintiff in the malicious prosecution (i.e. the defendant or accused in the action for prosecution) to instigate the proceedings in question;
  • the plaintiff in the malicious prosecution acted with an element of malice*. Malice means the absence of any proper motive to instigate the action. Hatred, ill-will and the desire to cause harm to the defendant are some types of malice. Negligence is not malice;
  • the proceedings failed—i.e. the malicious prosecution was unsuccessful; and
  • the defendant in the malicious prosecution suffered loss. This element demonstrates some connection to historical actions on the case rather than trespass.

The actions for malicious prosecution are comparatively rare.

Note:

You will need to get used to the way that we constantly make a distinction between things which are legal and things which are not.

Reading

Turn to your Reader for the following cases on the general nature of the tort of malicious prosecution:

Glinski v McIver [1962] AC 762

Roy v Prior [1970] 2 All ER 729

Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc. [1990] 1QB 391

Offei also discusses some South Pacific cases at pp. 77–86. Take note of Manorama Raju v Gurnam Singh and Another [1975] 21 Fiji 22 and Attorney-General v Wilson Wong (1994) Appeal No. 4 Solomon Islands.

Nervous Shock

Generally: recoverable in exceptional circumstances only, though courts are slow to accept it as head of damage for which tort of negligence could  scope of recovery severely restricted Psychiatric Injury

a) Compensate Excluded: grief or sorrow (except for claim for bereavement in damages) b) symptoms: preoccupation w/event, Included: post traumatic stress disorder  intrusive memories, increased arousal, sleeping difficulties, irritability, outburst of anger, overreaction to reminders of event, personality change etc.

Victims (1) Primary – suffers psychiatric injury after being directly involved in accident or being within the zone of danger and is either: a. Persons to whom physical injury is a foreseeable consequence of D’s negligence o Page v Smith-collision b/w cars, no physical injury to C but within hours of coming home felt obviously exhausted, claimed accident caused the return of Chronic Fatigue Syndrome from which he suffered in mild form for past 20 years. Unlikely he’d beable to ever work again. Lord Lloyd for majority in HL held that: a) where physical injury to C was a foreseeable consequence of D’s negligence, C is also a primary V for purposes for the law on psychiatric injury b) b/c in cases of physical injury to primary Vs, D is under duty not to cause him foreseeable physical injury, same applies to psychiatric injury

– to be treated as one so in psychiatric injury cases type of damage for purposes of foreseeability  primary V placed in foreseeable physical danger won’t have to prove psychiatric injury was also foreseeable        + 

decision to conflate 2 types of injury potentially reduced impact of Wagon Mound foreseeability in PI cases.

 Bailey & Nolan: both principles should be discarded & replaced w/clearer, more rational ones. In the mean time courts should continue to distinguish Page where circs are sufficiently different & its application would cause injustice. a) C’s presence in area of foreseeable physical risk shouldn’t ensure her classification as primary V for purposes of liability for psychiatric injury. Instead primary Vs should be defined as all those who suffer psychiatric injury as a result of death, injury, imperilment of another. Would ensure criteria for secondary Vs laid down in Alcock would apply in all cases where rationale for those criteria is satisfied so that attempts to limit primary V category to those in the area of foreseeable physical risk would be doomed to fail. b) Psychiatric & physical injury should be regarded as different types of damage so that in all primary Vs cases it would be required for psychiatric injury to be foreseeable in a person of ordinary fortitude, unless D knew or should have known of C’s particular suspectibility (apparently correct app of thin skull rule!) NB: there are many signs in both judiciary & Law Commission that Page v Smith won’t last, though Lords in Rothwell preferred to “leave it for another day”. b. put in fear.

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