Tort Exam Notes
Instructions:
The notes consist of two separates but connected documents:
1. Tort Exam Structure Notes – this covers the exam question
structure (e.g. Step 1, Step 2...) and written out answers for
generic parts of each question
2. Tort Exam Reference Document – this covers the various
detailed parts of each questions.
Words that are boldened and coloured in purple, e.g. Example, will
have the corresponding word in the Reference Document along with
its written out answer.
The purpose of the notes being in this format is to allow the
examinee to have a clear initial understanding of the structure of the
exam question AND be able to apply each question to its unique facts
and choosing only those answers that are necessary.
Note: where you see (ATF) this is asking you to apply the answer to
the set of facts given in the exam.
Topics covered:
1. Trespass to the Person
2. Defamation
3. Negligence
4. Pure Economic Loss
5. Pure Psychiatric Harm
6. Remedies
7. Employer Liability
8. Occupier’s Liability
9. Defective Product Liability
10. Private Nuisance
11. Land tort: Trespass
, Tort Exam Notes
Trespass to the Person Analysis -> refer to pg. 1
STEP 1: introduction.
[Claimant v Defendant]
The claimant, [X], may sue the defendant, [Y], for damages in the tort of trespass to the person for (ATF). Both
assault and battery are actionable per se, so there is no need to prove physical harm.
STEP 2: define + go through elements of relevant tort.
[Battery] Battery is defined as the intentional direct application of unlawful force to another person.
‘Intentional’ refers to the conduct and not the outcome (Wilson v Pringle). (ATF).
‘Direct application’ means the force must flow from the defendant’s actions without intervention and
almost immediately, however physical contact is not necessary. (ATF).
‘Unlawful force’ refers to any physical contact that are generally socially unacceptable (F v West
Berkshire Health Authority). (ATF).
[Assault] Assault is defined as the intentional act by the defendant that causes the claimant to reasonably
apprehend the immediate direct infliction of unlawful force (R v Beasly).
‘Intentional act’ refers to the conduct and not the result and negligence would not suffice (Letang v
Cooper). (ATF).
[Words] Words and actions can both constitute an intentional act (R v Ireland – ‘a thing said
is a thing done’). However, words can also negate an assault (Turberville v Savage – e.g. “I
would hurt you if we weren’t being watched”). (ATF).
‘Apprehension’ is tested objectively and it must be reasonable (Thomas v NUM). (ATF).
‘Immediate’ is generally understood as ‘within a minute or so’ (R v Ireland). (ATF).
[Psychiatric Harm] In Wilkinson v Downton a separate tort was established whereby the defendant intends to
cause shock to the claimant, who suffers tangible damage as a result (Wright J). This was reformulated in
Rhodes v OPO and now requires the following criteria.
First, there was conduct, either words or an act, that was aimed at the claimant for which there was
no justification or excuse. (ATF).
Second, there was intention to cause severe mental or emotional distress. (ATF).
Third, the outcome was physical harm or a recognised psychological illness. (ATF).
STEP 3: defences?
Potential defences: Consent or Defence of the Person or Defence of Property or Necessity or Lawful Arrest
Note: contributory negligence is not available in relation to trespass to the person (Co-operative Group v
Pitchard)
STEP 4: conclusion.
Remedies.
Defamation Analysis-> refer to pg. 2-3
, Tort Exam Notes
STEP 1: introduction.
[Claimant v Defendant]
The claimant, [X], may sue the defendant, [Y], for damages in the tort of defamation for (ATF).
Generally, under s.1 Defamation Act 2013, a statement will be defamatory if its publication has or is likely to
cause serious harm to the claimant’s reputation, and therefore rules out any trivial claims.
Defamation can be made in two ways.
First, libel is defamation in a permanent form, such as in writing on the internet, and is actionable per
se.
Second, slander is defamation in a transient or temporary form, such as verbally, and requires loss.
(ATF – which defamation is it?).
STEP 2: definition + elements to prove.
The three essential elements to prove defamation are as following.
First, the defendant’s words must be defamatory in nature, meaning the publication of the statement
has caused, or is likely to cause, serious harm to the reputation of the claimant (s.1 DA 2013).
[Application] Damage to reputation has been interpreted as: lowering the claimant in the
eyes of right-thinking members of society (Sim v Stretch); causing the claimant to be shunned
or avoided (Youssoupoff v MGM); or exposing the claimant to hatred, contempt or radicle
(Parmiter v Coupland). (ATF).
[Note] It should be noted that the state,emt should be taken in its full context
before being determined defamatory (Charleston v News Group).
Second, the defamatory words must refer to the claimant either explicitly or impliedly.
[Implied] Given there is no express reference the claimant, the relevant test for implied
reference is that the implication must be so specific that a reasonable person who knew the
claimant would know it was about the claimant (J’Ansonv v Steward). (ATF).
Third, the words must have been published, meaning they have been communicated to a third party.
A claim may be brought against the person who communicated the statement and any person who
then further communicated the same information. (ATF).
STEP 3: defences.
Potential defences: Truth or Honest Opinion or Public Interest or Qualified Privilege
STEP 4: conclusion.
Remedies.
Note: refer to Misuse of private information if necessary.
Unit 2: Negligence -> refer to pg. 4-9
Instructions:
The notes consist of two separates but connected documents:
1. Tort Exam Structure Notes – this covers the exam question
structure (e.g. Step 1, Step 2...) and written out answers for
generic parts of each question
2. Tort Exam Reference Document – this covers the various
detailed parts of each questions.
Words that are boldened and coloured in purple, e.g. Example, will
have the corresponding word in the Reference Document along with
its written out answer.
The purpose of the notes being in this format is to allow the
examinee to have a clear initial understanding of the structure of the
exam question AND be able to apply each question to its unique facts
and choosing only those answers that are necessary.
Note: where you see (ATF) this is asking you to apply the answer to
the set of facts given in the exam.
Topics covered:
1. Trespass to the Person
2. Defamation
3. Negligence
4. Pure Economic Loss
5. Pure Psychiatric Harm
6. Remedies
7. Employer Liability
8. Occupier’s Liability
9. Defective Product Liability
10. Private Nuisance
11. Land tort: Trespass
, Tort Exam Notes
Trespass to the Person Analysis -> refer to pg. 1
STEP 1: introduction.
[Claimant v Defendant]
The claimant, [X], may sue the defendant, [Y], for damages in the tort of trespass to the person for (ATF). Both
assault and battery are actionable per se, so there is no need to prove physical harm.
STEP 2: define + go through elements of relevant tort.
[Battery] Battery is defined as the intentional direct application of unlawful force to another person.
‘Intentional’ refers to the conduct and not the outcome (Wilson v Pringle). (ATF).
‘Direct application’ means the force must flow from the defendant’s actions without intervention and
almost immediately, however physical contact is not necessary. (ATF).
‘Unlawful force’ refers to any physical contact that are generally socially unacceptable (F v West
Berkshire Health Authority). (ATF).
[Assault] Assault is defined as the intentional act by the defendant that causes the claimant to reasonably
apprehend the immediate direct infliction of unlawful force (R v Beasly).
‘Intentional act’ refers to the conduct and not the result and negligence would not suffice (Letang v
Cooper). (ATF).
[Words] Words and actions can both constitute an intentional act (R v Ireland – ‘a thing said
is a thing done’). However, words can also negate an assault (Turberville v Savage – e.g. “I
would hurt you if we weren’t being watched”). (ATF).
‘Apprehension’ is tested objectively and it must be reasonable (Thomas v NUM). (ATF).
‘Immediate’ is generally understood as ‘within a minute or so’ (R v Ireland). (ATF).
[Psychiatric Harm] In Wilkinson v Downton a separate tort was established whereby the defendant intends to
cause shock to the claimant, who suffers tangible damage as a result (Wright J). This was reformulated in
Rhodes v OPO and now requires the following criteria.
First, there was conduct, either words or an act, that was aimed at the claimant for which there was
no justification or excuse. (ATF).
Second, there was intention to cause severe mental or emotional distress. (ATF).
Third, the outcome was physical harm or a recognised psychological illness. (ATF).
STEP 3: defences?
Potential defences: Consent or Defence of the Person or Defence of Property or Necessity or Lawful Arrest
Note: contributory negligence is not available in relation to trespass to the person (Co-operative Group v
Pitchard)
STEP 4: conclusion.
Remedies.
Defamation Analysis-> refer to pg. 2-3
, Tort Exam Notes
STEP 1: introduction.
[Claimant v Defendant]
The claimant, [X], may sue the defendant, [Y], for damages in the tort of defamation for (ATF).
Generally, under s.1 Defamation Act 2013, a statement will be defamatory if its publication has or is likely to
cause serious harm to the claimant’s reputation, and therefore rules out any trivial claims.
Defamation can be made in two ways.
First, libel is defamation in a permanent form, such as in writing on the internet, and is actionable per
se.
Second, slander is defamation in a transient or temporary form, such as verbally, and requires loss.
(ATF – which defamation is it?).
STEP 2: definition + elements to prove.
The three essential elements to prove defamation are as following.
First, the defendant’s words must be defamatory in nature, meaning the publication of the statement
has caused, or is likely to cause, serious harm to the reputation of the claimant (s.1 DA 2013).
[Application] Damage to reputation has been interpreted as: lowering the claimant in the
eyes of right-thinking members of society (Sim v Stretch); causing the claimant to be shunned
or avoided (Youssoupoff v MGM); or exposing the claimant to hatred, contempt or radicle
(Parmiter v Coupland). (ATF).
[Note] It should be noted that the state,emt should be taken in its full context
before being determined defamatory (Charleston v News Group).
Second, the defamatory words must refer to the claimant either explicitly or impliedly.
[Implied] Given there is no express reference the claimant, the relevant test for implied
reference is that the implication must be so specific that a reasonable person who knew the
claimant would know it was about the claimant (J’Ansonv v Steward). (ATF).
Third, the words must have been published, meaning they have been communicated to a third party.
A claim may be brought against the person who communicated the statement and any person who
then further communicated the same information. (ATF).
STEP 3: defences.
Potential defences: Truth or Honest Opinion or Public Interest or Qualified Privilege
STEP 4: conclusion.
Remedies.
Note: refer to Misuse of private information if necessary.
Unit 2: Negligence -> refer to pg. 4-9
