MATTHEW WILLIAMS

&
KALI LYLE
TABLE OF
CONTENTS
Law of Tort

Law of Contract

Real Property
 WHAT IS A TORT?

and amounts to
that gives rise
An act or a civil wrong for
to injury or
omission which courts
harm to
impose
another
liability/remedy
 UNDERSTANDING THE DIFFERENCES

Constitutional Law Criminal Law

The body of law that relates to crime. It
Concerns a body of fundamental proscribes conduct perceived as
principles or established threatening, harmful, or otherwise
precedents according to which a endangering to the property, health,
safety, and moral welfare of people. Most
state or other organization is
criminal law is established by statute,
acknowledged to be governed. which is to say that the laws are enacted
by a legislature

Tort Law Contract Law

Concerns an act or omission A written or spoken
that gives rise to injury or agreement, especially one
harm to another and concerning employment,
amounts to a civil wrong for sales, or tenancy, that is
which courts impose liability intended to be enforceable
by law
NEGLIGENCE
 OUTLINE OF
NEGLIGENCE
To satisfy Negligence you must
show
1. There was a duty

2. There was a breach of that duty

3. The breach caused damage

Negligence is 'the omission to do something which a

reasonable man, guided upon those considerations which
ordinarily regulate human affairs, would do, or doing
something which a prudent and reasonable man would not do'

-Blythe v Birmingham Waterworks (1856) 11 Exch 781

 NOTE
Not all acts of carelessness or negligence will satisfy the requirements for
the tort of negligence. If even one of the three elements is missing, then
NEGLIGENCE IS NOT PROVED.

"…in strict legal analysis, ‘negligence’ means more than heedless or

careless conduct, whether in omission or commission; it properly
connotes the complex concept of duty, breach and damage thereby
suffered by the person to whom the duty was owing"

-Lord Wright in Lochgelly Iron and Coal Co Ltd v McMullan [1934] AC 1

NEGLIGENCE
Part I: Establishing a Duty of Care
 DUTY OF CARE

Donoghue v Stevenson [1932] AC 562

Good Neighbour Principle

"The rule that you are to love your neighbour becomes, in law, you must not injure
your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a
restricted reply. You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour. Who, then, in law is
my neighbour?

The answer seems to be—persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as being so affected when I
am directing my mind to the acts or omissions which are called in question.
 DUTY OF CARE

Donoghue v Stevenson

Good Neighbour Principle = Foreseeability Test

 DUTY OF CARE

Anns v Merton LBC [1977] 2 All ER 492

Public Policy Principle

"In order to establish that a duty of care arises in a particular situation, the question
has to be approached in two stages.

First, one has to ask whether, as between the

alleged wrongdoer and the person who has suffered damage, there is a sufficient
relationship of proximity or neighbourhood such that, in the reasonable contemplation of the
former, carelessness on his part may be likely to cause damage to the latter, in which case a
prima facie duty of care arises.

Secondly, if the question is answered affirmatively, it is necessary to consider whether there are
any considerations which ought to negative, or to reduce or limit, the scope of the duty or the
class of person to whom it is owed, or the damages to which a breach of it may give rise
 DUTY OF CARE

Anns v Merton LBC

Good Neighbour Principle = Public Policy Test

BAD LAW
 OVERRULED

Tindall v Chief Constable of Thames

Valley Police [2020] EWHC 837

"The existence of a duty of care does not under current

understanding of the law, depend on notions of public
policy"
 DUTY OF CARE

Caparo Industries v Dickman [1990] 2 A.C. 605

Tripartite Principle
What emerges is that, in addition to the foreseeability of damage,
necessary ingredients in any situation giving rise to a duty of care are
that there should exist between the party owing the duty and the party
to whom it is owed a relationship characterised by the law as one of
"proximity" or "neighbourhood" and that the situation should be one in
which the court considers it fair, just and reasonable that the law should
impose a duty of a given scope upon the one party for the benefit of the
other.
 DUTY OF CARE

Caparo Industries v Dickman

Good Neighbour Principle = Foreseeability,
Proximity and whether it is fair, just and
reasonable to impose such a duty

Good Law
 NOTE
There is no one test to determine the duty of care that exists. Lord Bridge
noted that the courts are unable to provide a single general principle
which can be applied to every situation. What the courts have said is that
one should stick to defined notions of an existing duty as per the relevant
category.

"It is preferable, in my view, that the law should develop novel categories
of negligence incrementally and by analogy with established categories,
rather than by a massive extension of a prima facie duty of care
restrained only by indefinable 'considerations which ought to negative, or
to reduce or limit the scope of the duty or the class of person to whom it is
owed.'"
-Brennan J in Sutherland Shire Council v. Heyman (1985) 60 A.L.R
NEGLIGENCE
Part II: Establishing a Breach of Duty
 DEFINITION OF NEGLIGENCE

Negligence is 'the omission to do something which a

reasonable man, guided upon those considerations which
ordinarily regulate human affairs, would do, or doing
something which a prudent and reasonable man would not
do'

-Blythe v Birmingham Waterworks (1856) 11 Exch 781

 BREACH OF DUTY OF CARE

Blythe v Birmingham Waterworks = Reasonable

Man Standard
 IMPORTANCE OF THE

ESTABLISHING LIKELIHOOD OF HARM DEFENDANT'S CONDUCT

BREACH OF 01 The greater the likelihood that the

defendant’s conduct will cause harm,
the greater the amount of caution
03 The seriousness of the risk created by
the defendant’s activity must be
weighed against the importance or

DUTY USING THE required of him utility of such activity, and, where the
defendant’s conduct has great social

'REASONABLE value, he may be justified in exposing

others to risks which would not

MAN' STANDARD otherwise be justifiable

02
SERIOUSNESS OF INJURY
THAT IS RISKED 04 COST AND
PRACTICABILITY OF
MEASURES TO AVOID
HARM
The gravity of the consequences if How costly and practicable it
an accident were to occur must would have been for the defendant
also be taken into account to have taken precautions to
eliminate or minimise the risk
 Likelihood of
Harm

"The degree of care which the duty involves must be

proportioned to the degree of risk involved if the duty of care
should not be fulfilled."

"The existence of some risk is an ordinary incident of life, even

when all due care has been, as it must be, taken."
Hilder v Associated Portland Cement Manufacturers
Ltd [1961] 1 WLR 1434

Facts
The plaintiff, whilst riding his motorcycle along a road, crashed and
sustained injuries after being struck by a football kicked from the
defendant’s adjacent land where children were in the habit of
playing.

Issue
Whether the injury caused to the plaintiff was a likely result of the
activities of the children on the field

Held
The defendant was held negligent in having failed to take
precautions to prevent footballs from being kicked onto the road
since, in the circumstances, the likelihood of injury to passers-by
was considerable
 Seriousness of
Injury Risked
"In view of the large number of blind persons who fall into the
category of abnormal and are users of the road it cannot be said
that the risk of causing them injury is so small as to be minimal
and therefore to be excluded from the realm of foreseeability.

"The duty of an employer towards his servant is to take reasonable care

for the servant's safety in all the circumstances of the case. The fact
that the servant has only one eye if that fact is known to the employer,
and that if he loses it he will be blind, is one of the circumstances which
must be considered by the employer in determining what precautions if
any shall be taken for the servant's safety."
Miller v Jackson[1977] QB 966.

Facts
The defendants had played cricket on a particular area of land for around 70 years. The neighbouring land
was then sold for development and houses built on it. The plaintiffs bought one of the houses and then
complained of negligence and nuisance from cricket balls landing on the property. The plaintiffs suffered
damage to property and also complained that the activities of the cricketers prevented the enjoyment of
their land and caused nervous damage. The first instance judge granted the injunction sought.

Issue
Whether the defendants were guilty of negligence and/or nuisance

Held
the defendants, so long as they played cricket on that ground, were guilty of
negligence every time a ball came over the fence and caused damage, for the
risk of injury to person and property was continuous and no reasonable method
of eliminating that risk had been produced; they were also guilty of nuisance
since their use of their land involved an unreasonable interference with their
neighbours' use and enjoyment of their house and garden; and the neighbours
were under no duty to mitigate that risk.
 Importance of
The Defendant's Conduct

"In determining whether a party is negligent, the standard of reasonable care

is that which is reasonably demanded in the circumstances. A relevant
circumstance to be taken into account may be the importance of the end to
be served by behaving in this way or that. As has often been pointed out, if all
the trains in this country were restricted to a speed of five miles an hour, there
would be fewer accidents, but our national life would be intolerably slowed
down. The purpose to be served, if sufficiently important, justifies the
assumption of abnormal risk."

"It is well settled that, in measuring due care, one must balance the risk
against the measures necessary to eliminate the risk. To that
proposition there ought to be added this: one must balance the risk
against the end to be achieved.
Byfield v AG (1980) Supreme Court, Jamaica, No CL B-
344 of 1977 (unreported)

Facts
Two constables were chasing an armed man who was wanted for various offences, including robbery and
possession of firearms. The man ran into the yard of the plaintiff’s house, from where he fired a shot at the
pursuing constables. The constables returned fire but accidentally shot the plaintiff, who was also in the
yard but had not been noticed by the constables.

Issue
Whether the constables were liable in negligence

Held
The constables were not liable in negligence, since they were acting in the
execution of their duty in ‘hot pursuit’ of a gunman. They were entitled to defend
themselves and were under no duty to retreat. Gordon J (AG) indicated that
given the personal risk undertaken by the police in the apprehension of this
gunman, the resulting consequences could not be said to outweigh the actions
of the officers. Therefore, there was no negligence.
Remember.
If the purpose to be served is
sufficiently important, the risk
undertaken, though abnormal, will be
justified.
Cost and Practicability
of Measures to avoid Harm

"In every case of foreseeable risk, it is a matter of balancing the

risk against the measures necessary to eliminate it.

"It would be impracticable so to maintain passages, roads and

pathways that there was never a slippery place where, especially after
rain, a workman might slip. Slipping is quite a common incident of life,
and mostly no harm is done by it, although unfortunately this plaintiff
did suffer serious injury."
Latimer v AEC Ltd [1952] 2 QB 701

Facts
During an unusually heavy rainstorm the floors of a factory were flooded and an oily cooling mixture,
which normally was contained in a channel in the floor, along which it was pumped to machinery, rose
and mixed with the flood waters. Consequently, when the flood subsided, the floors were slippery. As far as
supplies permitted, sawdust was spread on the floor, but some areas were left untreated. A workman,
working in a gangway which had not been treated with sawdust was attempting to load a heavy barrel on
to a trolley when he slipped and injured his ankle.
Issue
Whether the employers were liable in negligence

Held
the employers had not been negligent for they had done all that a reasonable
employer could be expected to do, bearing in mind the degree of risk involved
due to the slippery floor.
Remember.
Even if injury occurs, the question the
court will have to decide is whether it
would be practical for the accused to
have taken steps to reduce or
eliminate the possibility of injury
 The Reasonable Man

01 Intelligence
In determining whether the defendant’s actions
satisfied the standard of a reasonable man, the
court will measure those actions against the
02 Knowledge
A person is expected to have that
degree of common sense or knowledge
conduct expected of a person of normal of everyday things which a normal
intelligence, and the defendant will not be excused adult would possess. Where he
for having acted ‘to the best of his own judgment’
occupies a particular position however,
if his ‘best’ is below that to be expected of a man
he will be held to the standard of a

03
of ordinary intelligence.
typical person in that position
Skill
A person who holds himself out as having a
particular skill, either in relation to the public
generally (for example, a car driver) or in relation
to a person for whom he is performing a service
(for example, a doctor), will be expected to show
the average amount of competence normally
possessed by persons doing that kind of work
 NOTE
When we speak of a duty of care and the breach of said duty, it is to be
noted that the specific circumstances must be assessed. You must
establish that the person actually owes some form of duty whether by
proximity, statute or otherwise. THERE IS NO GENERAL DUTY TO ACT OR
TO BE A GOOD SAMARITAN

Where a person who is not under a duty to act does nothing but fails to act, he
cannot incur liability. Even if he undertakes a task which he is not obliged to
perform, he owes no duty to take care in its performance as long as he does not
thereby add to the damage which would have been caused had he done nothing"

-Patterson J in Campbell v Clarendon PC (1982) 19 JLR 13, Supreme Court, Jamaica

NEGLIGENCE
Part III: Establishing Damage
 OUTLINE OF
NEGLIGENCE
To satisfy Negligence you must
show
1. There was a duty

2. There was a breach of that duty

3. The breach caused damage

Negligence is 'the omission to do something which a

reasonable man, guided upon those considerations which
ordinarily regulate human affairs, would do, or doing
something which a prudent and reasonable man would not do'

-Blythe v Birmingham Waterworks (1856) 11 Exch 781

 Required

Causation

Required

DAMAGE
Remoteness of
'But For' Test Damage

Foreseeability
Test/Egg-Shell
Skull Principle
What is Causation?
WHAT IS
CAUSATION?
Causation speaks to the presence of a breach
of duty that resulted in the damage
complained of. Essentially, the Court embarks
on an exercise to determine whether the
resulting injury was directly related to the
actions of the person who had a duty and
breached said duty.
WHAT IS THE
'BUT FOR' TEST?
CORK V KIRBY MACLEAN
LTD [1952] 2 ALL ER 402
"If the damage would not have happened but
for a particular fault, then that fault is the
cause of the damage; if it would have
happened just the same, fault or no fault, the
fault is not the cause of the damage."
- Lord Denning
Let's look at some cases!
 BARNETT V CHELSEA AND KENSINGTON
MANAGEMENT COMMITTEE [1956] AC 613

Facts
The claimant presented himself at a hospital emergency department whilst
suffering from stomach pain and vomiting. He was seen by a nurse, who
spoke to a doctor, who told her to send the claimant home and for him to
call his GP in the morning. Five hours later the claimant died from arsenic
poisoning. It was established that had the claimant been seen by a doctor he
still would have died from the poisoning
 BARNETT V CHELSEA AND KENSINGTON
MANAGEMENT COMMITTEE [1956] AC 613

Held
There was nothing that the defendant could have done to save him.
Thus, applying the but for test, the courts established that there was no
factual causation - the injury to the claimant would have occurred regardless
of the defendant’s conduct.
 CORK V KIRBY MACLEAN LTD [1952] 2 ALL
ER 402

Facts
The claimant was painting the inside roof of a factory. The claimant was
working on a narrow platform 23 feet above the ground, with no guard-rails
or toe-boards. The claimant had epilepsy, and was aware of this fact; his
employers were not. Whilst working, the claimant had an epileptic fit and
was killed when he fell from his platform.
When the case came to court, the defendants argued that the cause of
death was the claimant’s epilepsy, which it could not be held responsible for.
Conversely, the claimant’s estate argued that the cause was a lack of
appropriate guard-rails on the platform.
 CORK V KIRBY MACLEAN LTD [1952] 2 ALL
ER 402

Held
The Court took the view that guardrails would have likely prevented the fall,
Therefore, there was a causal link between the lack of guardrails and the
injury to the claimant.
What does 'Remoteness' mean?
WHAT DOES
REMOTENESS MEAN?
The basic rule is that a defendant will be liable
only for those consequences of his negligent
act which are not too remote in law, even
though such act may be said, on an
application of the ‘but for’ test, to have caused
the damage complained of.
OVERSEAS TANKSHIP (UK) LTD V MORTS DOCK AND
ENGINEERING CO LTD (THE WAGON MOUND (NO 1)) [1961] AC
388

Facts
The defendants negligently discharged oil from their ship into Sydney
Harbour, where the plaintiffs were carrying out welding operations at their
wharf. Molten metal from the welding operations set fire to some cotton
waste floating on the oil beneath the wharf. The waste, in turn, set fire to the
oil and, in the ensuing conflagration, the wharf was severely damaged. The
oil also found its way onto the plaintiffs’ slipways adjoining the wharf and
interfered with the plaintiffs’ use of them.
OVERSEAS TANKSHIP (UK) LTD V MORTS DOCK AND
ENGINEERING CO LTD (THE WAGON MOUND (NO 1)) [1961] AC
388

Held
On the evidence, the defendants neither knew nor ought to have known
that the oil was capable of catching fire when spread on water, they could
not reasonably have foreseen that their act of discharging the oil would have
resulted in the plaintiffs’ wharf being damaged. The damage was thus too
remote and they were not liable for it. But they were liable for the fouling of
the slipways, since that was a foreseeable consequence of the discharge of
the oil
EGG-SHELL SKULL
PRINCIPLE IN REMOTENESS

"If a man is negligently run over or otherwise

negligently injured in his body, it is no answer to the
sufferer’s claim for damages that he would have
suffered less injury, or no injury at all, if he had not
had an unusually thin skull or an unusually weak
heart."

-Kennedy J in Dulieu v White and Sons [1901] 2 KB 669

WAGON It is simple. The full test requires

MOUND & the establishment of foreseeability

and if this is satisfied, the
DULIEU defendant is liable for any and all
consequences, including those
brought about by some
Essentially, what is the link between the
peculiarity
foreseeability test and the egg-shell skull
principle?
 NEGLIGENT
MISSTATEMENT
"Damages can be recovered in tort for economic loss
caused by careless misstatements"

-Hedley Byrne and Co Ltd v Heller and Partners Ltd

[1963] 2 All ER 575

"Where a misstatement is fraudulent, ie, made without

belief in its truth or made recklessly as to whether it is
true or false, the representor may be liable for the tort
of deceit"

-Derry v Peek (1889) 14 App Cas 337

 LIMITING Where, subsequently to the defendant’s

FACTORS IN
breach of duty, an independent event
occurs that causes damage to the

NEGLIGENCE
plaintiff, the question arises as to whether
the defendant is to be held liable for the
damage, or whether the intervening
event is to be treated as a novus actus
A claim in negligence normally results in interveniens which ‘snaps the chain of
the award of damages. The typical causation and thus relieves the
defence raised by respondents is that of defendant from liability.
novus actus interveniens.
An intervening Act can be the actions of
the claimant, acts of God or acts of a third
Clay v Tui UK Ltd [2018] EWCA Civ 1177
party

"Determining whether there has been a novus actus

interveniens requires a judgment to be made as to
whether, on the particular facts, the sole effective cause
of the loss, damage or injury suffered is the novus actus
interveniens rather than the prior wrongdoing"
DEFAMATION
WHAT IS
DEFAMATION?
"The criterion by which words are to be considered capable of being defamatory has generally been
regarded as settled by authority of long standing. The definition generally laid down is that the
words expose the plaintiff to hatred, ridicule and contempt. The definition is here thought by Lord
Atkin to be probably too narrow. In the present case he proposes the test: would the words tend to
lower the plaintiff in the estimation of right thinking members of society generally? This, of course,
is not a test of universal application, because one has to consider the person or class of persons
whose reaction to the publication is the test of the wrongful character of the words used. This
qualification, however, would only seem to require that there should be substituted for “right-
thinking member of society generally,” the person or class of persons whose reaction to the
publication forms the test of the defamatory character of the words."

-Sim v Stretch [1936] 2 All ER 1237

 Libel concerns a defamatory statement in
01
permanent form such as written words in a
newspaper, book, pamphlet, printed notice
or letter. It also includes defamatory
paintings, cartoons, photographs, effigies,
films and computer-derived exposure,

PLEASE such as e-mail messages, bulletin boards,

newsgroups and the world wide web.

NOTE!!!!
LIBEL IS ALWAYS ACTIONABLE PER SE.

02 Slander is a defamatory statement in

a transient form, principally by means
of spoken words or gestures.
In Jamaica, there is no distinction SLANDER IS NOT ACTIONABLE PER
between libel and slander as per Section SE, EXCEPT IN DEFINED INSTANCES.
6 of the Defamation Act. Further Section
9 states that defamation is actionable
without proof of special damage. This
means that there does not have to be a
direct assertion of guilt.

The law surrounding Libel and Slander is

still useful however.
TRESPASS TO
THE PERSON
TRESPASS TO
THE PERSON
Trespass to the person generally encompasses three torts:

a. Assault
b. Battery
c. False imprisonment

All are actionable per se, that is without proof of damage.

TRESPASS TO
THE PERSON
PART I : ASSAULT & BATTERY
 An assault is a direct threat made by the

DISTINGUISHING
01
defendant to the plaintiff, the effect of
which is to put the plaintiff in reasonable

ASSAULT AND fear or apprehension of immediate

physical contact with his person.

BATTERY
Battery is the intentional application of
force to another person. Assault is the
02 A battery has been defined as a direct
intentional putting of another person in
act of the defendant which has the
fear of an imminent battery.
effect of causing contact with the
body of the plaintiff without the
latter’s consent. Battery connotes an
intentional act on the defendant’s
part.
 ASSAULT

In order to constitute an assault, the act must have been such that a reasonable man might fear that
violence was about to be meted out to him, thereby establishing an objective test. Exceptional
bravery will not remove the presence of an assault and in the alternative, extreme cowardice will not
result in a finding of assault. The test is based on that of the ordinary man.

"It is not every threat, when there is no actual personal violence, that constitutes an assault, there
must, in all cases, be the means of carrying the threat into effect."

-Tindal CJ in Stephens v Myers (1830) 172 ER 735

STEPHENS V MYERS (1830) 172 ER 735

Facts
A was advancing in a threatening attitude, with an intention to strike B, so
that his blow would have almost immediately reached B, if he had not been
stopped

Held
An assault; though, at the particular moment when A was stopped, he was
not near enough for his blow to take effect
HULL V ELLIS [1966] COURT OF APPEAL, JAMAICA

Facts
The defendant was holding a revolver in her hand, when she accosted the
plaintiff as he was riding his donkey along a public road and asked him
where he had got the piece of wood he was carrying.

Held
The defendant was held liable for assault.
 R V ST GEORGE (1840) 173 ER 921

Facts
The Defendant (St. George) got into an argument with the victim, a Mr Durant. During the
course of this argument, the Defendant took out a gun and pointed it at Mr Durant. The
gun was, in fact, not loaded. He was in any event prevented from taking further action by
a third party. The Defendant was prosecuted for assault.

Held
It was held by the court that in the circumstances the Defendant was guilty of an assault.
Threatening someone with a gun, regardless of whether the gun was loaded, would amount to
a threat as long as the victim thought that the gun was in fact loaded. On the other hand,
where the victim was aware that the gun was not loaded, but was still afraid, that fear would be
unreasonable and therefore there would be no assault in those circumstances. The test applied
is subjective, but there must be at least a subjective possibility that the threat against the victim
can be carried out.
 VIEW 1: NO IT IS NOT

01
IS IT ASSAULT TO It is not possible for the person to
POINT AN carry out the act of shooting. (See
Stephens v Myers)
UNLOADED GUN
AT SOMEONE?

02 VIEW 2: YES IT IS
If it places the person under reasonable
apprehension of fear, then it is an assault and
that is exactly what happens when a firearm is
pointed by an aggressor (See R v St. George).
 R V MEADE AND BELT

CAN WORDS 01 (1823) 1 LAW CC 184.

ALONE "No words, or singing are equivalent

to an assault"
CONSTITUTE
ASSAULT?
02
TUBERVILLE V SAVAGE (1669) 1 MOD
REP 3
During a quarrel between the plaintiff and the defendant,
the latter put his hand on his sword and said, If it were not
assize time, I would not take such language from you’, there
was no assault because the words had negatived the
apprehension of immediate contact caused by the placing
of the defendant’s hand on his sword
 NOTE
Please note that where a conditional threat is made, coupled with the
capability of immediate violence, the possibility of an assault arises. So
long as the statement causes reasonable apprehension of immediate
violence.

"To constitute an assault there must be something more than a threat of violence. An
assault is thus defined in Buller's Nisi Prius: "An assault is an attempt or offer, by force
or violence, to do a corporal hurt to another, as, by pointing a pitchfork at him, when
standing within reach; presenting a gun at him; drawing a sword and waving it in a
menacing manner. But no words can amount to an assault."

So an assault is said to be "an attempt to offer or beat another without touching him;
as if one lifts up his cane or his fist in a threatening manner at another; or strikes at
him but misses him; this is an assault, which Finch describes to be 'an unlawful setting
upon one's person'"
-Byles Serjt in Read v Coker (1853) 13 CB 850
 BATTERY

In order to constitute battery, there must be an intentional act that results in contact with the body of
the plaintiff without his consent. It is not necessary for there to be physical contact between the
plaintiff and the defendant. If the defendant uses some material object in the act, it will suffice. It
must also be made clear that battery can be committed in the absence of hostility. Therefore, battery
can be present where the defendant throws stones, spits in the face of a person, kisses a woman
against her will, knocks over a chair or releases a dog upon a person.

Note as well that contact that amounts to naturl conduct, such as jostling in a line will not constitute
battery.

"When the injury to a plaintiff is caused by the defendant's intended act, the cause of action is
trespass to the person; when the act is not intended, a plaintiff's only cause of action is negligence"

-Lord Denning in Letang v Cooper [1965] 1 QB 232

 COLLINS V WILCOCK [1984] 3 ALL ER 374

Facts
Two police officers on duty in a police car observed two women in the street who appeared to
be soliciting for the purpose of prostitution. One of the women was known to the police as a
prostitute but the other, the appellant, was not a known prostitute. When the police officers
requested the appellant to get into the car for questioning she refused to do so and instead
walked away from the car. One of the officers, a policewoman, got out of the car and followed
the appellant in order to question her regarding her identity and conduct and to caution her,
if she was suspected of being a prostitute, in accordance with the approved police procedure
for administering cautions for suspicious behaviour before charging a woman with being a
prostitute, contrary to s 1a of the Street Offences Act 1959. The appellant refused to speak to
the policewoman and walked away, whereupon the policewoman took hold of the appellant's
arm to detain her. The appellant then swore at the policewoman and scratched the officer's
arm with her fingernails. The appellant was convicted of assaulting a police officer in the
execution of her duty, contrary to s 51(1)b of the Police Act 1964. She appealed against the
conviction.
 COLLINS V WILCOCK [1984] 3 ALL ER 374

Held
Except when lawfully exercising his power of arrest or some other statutory
power a police officer had no greater rights than an ordinary citizen to restrain
another. Accordingly, whether a police officer's conduct was lawful when
detaining a person to question him in circumstances where the officer was not
exercising his power of arrest or other statutory power depended on whether the
physical contact the officer used to detain the person was no more than
generally acceptable physical contact between two citizens for the purpose of
one of them engaging the attention of the other and as such was lawful physical
contact as between two ordinary citizens. If the conduct used by the officer went
beyond such generally acceptable conduct, eg if the officer gripped a person's
arm or shoulder rather than merely laying a hand on his sleeve or tapping his
shoulder, the officer's conduct would constitute the infliction of unlawful force
and thus constitute a battery.
TRESPASS TO
THE PERSON
PART II : FALSE IMPRISONMENT
 False Imprisonment

Don't think of false imprisonment in the sense that the

imprisonment was untrue. Think of it in the sense that
the person was unlawfully locked in jail or otherwise
restrained. Partial restraint will not satisfy this particular
tort.

"Every restraint of the liberty of a free man is an

imprisonment, although he be not within the walls of
any common prison"

-Coke J quoted in Bird Vs. Jones, (1845) 7 Q.C. 742

7
 Partial Restraint Sufficient?

Bird v Jones [1845] 7 QB 742

Facts

The plaintiff was attempting to pass in a particular

direction. The defendant obstructed and prevented him
from going in any direction but one, the direction which
he did not endeavour to pass. The question was whether
there was a false or illegal imprisonment.

Held

The English Court held that the restraint should be total

for there to be false or illegal imprisonment. In the
instant case, the plaintiff was not prevented from going
in the direction that he did not endeavour to pass.
Accordingly, there was no imprisonment.
7
Total Restraint Upon Agreed
Terms?

Herd v Weardale Coal Co (1915) AC 67

Facts

A miner descended a coal mine at 9.30 A.M. for the

purpose of working therein for his employers, the owners
of the colliery. In the ordinary course he would be entitled
to be raised to the surface at the conclusion of his shift,
which expired at 4 P.M. On arriving at the bottom of the
mine the miner was ordered to do certain work which he
wrongfully refused to do, and at 11 A.M. he requested to be
taken to the surface in a lift, which was the only means of
egress from the mine. His employers refused to permit
him to use the lift until 1.30 P.M. although it had been
available for the carriage of men to the surface from 1.10
P.M., and in consequence he was detained in the mine
against his will for twenty minutes. In respect of this
detention the miner sued his employers for damages for
false imprisonment 7
Total Restraint Upon
Agreed Terms?

Herd v Weardale Coal Co (1915) AC 67

Held
on the principle of volenti non fit injuria*, that the action
could not be maintained

*Please note that violenti non fit injura means that where
a person knowingly and voluntarily risks danger, he
cannot claim in tort.

7
Total Restraint For Breach of
Contract?

Robinson v Balmain Ferry Co. Ltd

(1910) A.C

Facts

In an action for damages for assault and false

imprisonment it appeared that the plaintiff had
contracted with the defendants to enter their wharf and
stay there till the boat should start and then be taken by
the boat to the other side. No breach of the defendants'
undertaking was alleged, but the plaintiff after entry
changed his mind and desired to effect an exit from their
wharf without payment of the prescribed toll for exit, and
was for a time forcibly prevented from leaving

7
Total Restraint For Breach of
Contract?

Robinson v Balmain Ferry Co. Ltd

(1910) A.C

Held

The toll imposed was reasonable and the defendants

were entitled to resist a forcible evasion of it.

7
Total Restraint For Breach of Contract?

Sunbolf v Alford (1838) 150 ER 1135

Facts

An innkeeper rented a portion of his premises to the plaintiff

and demanded his rent. The plaintiff refused and was barred
from leaving until he paid the sums due. The defendant also
removed the coat of the plaintiff as a security deposit and
thereafter allowed the plaintiff to leave.

Held

The English Court held that an innkeeper’s lien for the amount
of his charges extended only to those goods of which he could
have the possession at the time of exercising his right. That
right was simply one of detainer. It did not authorise the
innkeeper to imprison his guest, nor take forcible possession of
the guest’s wearing apparel in current use, or of any goods
then in the custody of the guest himself. Either of those acts
constituted a trespass, for which the innkeeper was liable.
7
 The Test therefore in restraining someone
in light of a breach of contract is whether
the manner of restraint was reasonable

2
Lawful/Unlawful Total Restraint?

Williams v Home Office No 2 (1981) 1 All ER 1211

Facts

The plaintiff prisoner had been transferred from ordinary prison to a

special control unit which had been established at the prison as a
means of containing and controlling prisoners who were considered to
be troublemakers and inducing them to realise that it was in their own
interest to improve their behaviour. He complained that he had not had
a fair opportunity to challenge the decision to transfer him.
Held

The Court held that the imprisonment was justified as it had been
imposed by the Court. Further the conditions of the detention did not
affect the lawfulness.

7
Physical Force in Total Restraint?

Clarke v. Davis (1964) 8 J.L.R. 504

Facts

C drew his pay and was immediately accosted by a unformed

constable and accused of having drawn pay without working. He was
then invited to show the police where he had done the work and later to
go with them to the police barracks. The issue was whether C's liberty
had been restrained.

Held

The police were liable for false imprisonment.

per Lewis J.A .: "In my view, in [the circumstances, C could have done
nothing other than to go with the police and he went with them ... was
his agreement to go to the barracks a true consent or was it merely a
submission to circumstances of authority against which he could not
resist? I am clearly of the opinion that... C was under restraint and
bound to submit to the wishes of the police officers."
7
Presence of Awareness in Total Restraint?

Meering v Graham White Aviation Co (1919) 122LT 44

Facts

The claimant was asked to go to a room with two work policemen from
the Aviation company. He asked why and stated he would leave if not
told. When told it was on suspicion of theft he agreed to stay, and the
works police stood outside until the metropolitan police arrived.
Unknown to him they were asked to prevent him from leaving.

Held

It was held that an act which fulfils the requirement for a false
imprisonment, even if the claimant is unaware at the time, still counts.
Meering was entitled to damages.

7
TRESPASS TO
THE PERSON
PART III : MALICIOUS PROSECUTION
WHAT IS MALICIOUS
PROSECUTION?
The tort of malicious prosecution is committed where the
Defendant maliciously and without reasonable and
probable cause initiates against the plaintiff a criminal
prosecution that terminates in the plaintiff’s favour, and
which results in damage to the plaintiff’s reputation,
person or property
TEST FOR MALICIOUS
PROSECUTION
The Plaintiff must prove:

That the law was set in motion against him

on a charge of a criminal offence

That he was acquitted of the charge or that

otherwise it was determined in his favour

That the prosecutor set the law in motion

without reasonable and probable cause

That, in so setting the law in motion, the

prosecutor was actuated by malice
WHAT DOES
MALICE MEAN?
"Malice, in its widest and vaguest sense, has been said to mean
any wrong or indirect motive; and malice can be proved either
by showing what the motive was and that it was wrong or by
showing that the circumstances were such that the
prosecution can only be accounted for by imputing some
wrong or indirect motive to the prosecutor."

-Cave J in Brown v Hawkes [1891] 2 QB 718

REAL PROPERTY
What is Real Proprty?
Real Property
Land law or real property relates to the rights and liabilities attached to immovable
property.

The question of land isn't simply the soil that a house or building may be attached
to but also that which is below the top soil and that which is above. It can therefore
be said that an 'owner' has is a right in rem i.e., right against the entire world.
Moreover, with this land comes not only rights but also obligations and interests
which do not affect personalty.
Real Property Cont'd

Realty- these are concerned with all the estates and interests in land
(except leases). Real property are not absolutely owned.

Personalty- this can be divided into 3.

1. 'choses in possession'- tangible things aside from land owned
absolutely like cars,
2. 'choses in action'- intangible rights aside from land; you cannot take
physical possession; enforced by court like patents.
3. 'chattels real'- leases ie estates in land... also called personal property.
Real Property Cont'd

Corporeal- these are tangible or material things such as stoves, trucks,

microwaves...beds even!

Incorporeal- this is also referred to as intellectual property. This is

because it includes valuable interests that are protected by law. Those
things you may have rights over or to so restrictive covenants, easements,
rent... all those things with no physical existence... patents, copyrights,
maybe trademarks. They are intangible!
Real Property Cont'd

Moveable- not permanently attached to land and can be destroyed

Immovable- land and that includes anything underneath (to the center)
and attached
Fixtures and Chattles

FIXTURES CHATTLES

Any structure or material thing attached to Any structure which does not form part of
the land (realty and property of land owner) the land (removable)

Grounded in the maxim "quicquid plantatur

When removed, it should not transform,
solo solo cedit" ie. what is affixed to the land
alter or disrupt the character of the land
forms part of it and belongs to the soil

Examples: water heater, air conditioning, Examples: machines unattached to floor,

light fixtures, dishwashers zinc shed or store room
Fixtures and Chattles Cont'd
Determining whether an object is a fixture or chattle Lord Blackburn in
Holland v Hodgson (1872) LR 7 CP 328 says that "This is a question of fact
depending on the circumstances of each case, and principally on two
considerations; first, the mode of annexation to the soil or fabric of the
house, and the extent to which it is united to them, whether it can
easily be removed ...; secondly, on the object and purpose of the
annexation, whether it was for the permanent and substantial
improvement of the dwelling, ... or merely for a temporary purpose and
the more complete enjoyment and use of it as a chattel."