Trespass to the Person Analysis
STEP 1: introduction.
STEP 2: define + go through elements of relevant tort.
STEP 3: defences?
Consent
May be implied or express consent
Medical cases – (Chatterton v Gerson) – a patient is deemed to have consented (‘real’ consent) to
medical treatment once informed in broad terms of the nature of procedure intended – invalidated
by misrepresentation
Medical cases – (Chester v Afshar) – a doctor’s failure to disclose risks will not invalidate the patient’s
consent
Sports cases – (Condon v Basi) – a sports competitor consent not only to all conduct within the rules
of the sport, but also to conduct outside the rules, but within the spirit of the sport
Defence of the Person
Cockroft v Smith – the defendant must establish that the force was
1. Used in self-defence and not as an act of retaliation
2. Reasonable; and
3. Proportionate to the force used/threatened by the claimant
Defence of Property
One may take reasonable steps to defend one’s property
This includes taking reasonable steps to eject a trespasser (which might mean first asking the
trespasser to leave – Green v Goddard)
Necessity
The defendant must show:
1. That a situation of necessity existed; and
2. That his actions were reasonable
o F v West Berkshire Health Authority – identified two situations where defence of necessity
could justify treating an adult medically without consent:
An emergency situation where the patient is unconscious; and
A state of affairs, e.g. a stroke, rendering the patient incapable of giving consent
*NB: this is extended to other scenarios of necessity: bystanders helping at crash scenes, care workers
Lawful Arrest
If a police officer lawfully arrests someone pursuant to a valid warrant, he or she does not commit the tort of
battery provided the officer uses only reasonable force to carry out the arrest (Police and Criminal Evidence
Act 1984).
STEP 4: conclusion.
1
,Defamation Analysis
STEP 1: introduction.
STEP 2: definition + elements to prove.
STEP 3: defences.
Truth
The defendant has a complete defence if his statement is factual, and the facts are substantially true (s.2
Defamation Act 2013). (ATF).
Honest Opinion
The defendant has a defence if his statement is:
An expression of opinion (rather than fact) as set out s3 Defamation Act 2013
In particular, the statement will have to fulfil the following conditions:
1. The statement was a statement of opinion
2. The statement set out the basis of the opinion expressed therein; and
3. An honest person could have the opinion on the basis of-
Any fact which existed at the time the statement complained of was published
Anything asserted to be a fact in a privileged statement published before the statement
complained of
This defence will be defeated if the claimant is able to show that the defendant did not hold the
opinion
o Pursuant to s3(6) Defamation Act 2013, entities reproducing someone else’s statement (e.g.
a newspaper publishing a letter from a reader) would only be liable if the claimant is able to
show that the publisher knew that the author of the statement did not hold the opinion
expressed
Public Interest
On a matter of public interest as per s4 Defamation Act 2013
A defendant has a valid defence against an action for defamation for both statements of facts and
statements of opinion if he can show that:
1. The statement complained of was on a matter of public interest; and
2. The defendant reasonably believed that publishing the statement complained of was in the
public interest
Under s4 Defamation Act 2014, the court must
o Have regard to all circumstances of the case and
o Make allowances for editorial judgment when determining whether or not the defendant
reasonably believed that publishing the statement complained of was in the public interest
Qualified Privilege
Applies to statement both of fact and opinion
There is a defence where the maker of a statement has a duty (legal, moral or social) to make the
statement, and the recipient has an interest in receiving the information
This defence does not apply if the claimant can show that the defendant acted with malice in making
the statement
Misuse of private information
Following Campbell v MGN Ltd, the action for misuse of private information will succeed if the
claimant can show that two conditions are satisfied:
2
, 1. The information divulged must be private
This can be established by analysing whether the claimant had a reasonable expectation of
privacy in relation to the information disclosed
2. There must not be a legitimate public interest in disclosure of the information
For example, there would be a legitimate public interest in the disclosure of the private
information if the publication could
o Show that the claimant had previously lied on the matter disclosed,
o That the claimant had engaged in illegal or iniquitous behaviour or
o Where it concerns political figures in their public role
If private information is divulged in breach of confidential relationship (especially a
contractual duty of confidence), then it is more likely than this tort has been committed
STEP 4: conclusion.
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STEP 1: introduction.
STEP 2: define + go through elements of relevant tort.
STEP 3: defences?
Consent
May be implied or express consent
Medical cases – (Chatterton v Gerson) – a patient is deemed to have consented (‘real’ consent) to
medical treatment once informed in broad terms of the nature of procedure intended – invalidated
by misrepresentation
Medical cases – (Chester v Afshar) – a doctor’s failure to disclose risks will not invalidate the patient’s
consent
Sports cases – (Condon v Basi) – a sports competitor consent not only to all conduct within the rules
of the sport, but also to conduct outside the rules, but within the spirit of the sport
Defence of the Person
Cockroft v Smith – the defendant must establish that the force was
1. Used in self-defence and not as an act of retaliation
2. Reasonable; and
3. Proportionate to the force used/threatened by the claimant
Defence of Property
One may take reasonable steps to defend one’s property
This includes taking reasonable steps to eject a trespasser (which might mean first asking the
trespasser to leave – Green v Goddard)
Necessity
The defendant must show:
1. That a situation of necessity existed; and
2. That his actions were reasonable
o F v West Berkshire Health Authority – identified two situations where defence of necessity
could justify treating an adult medically without consent:
An emergency situation where the patient is unconscious; and
A state of affairs, e.g. a stroke, rendering the patient incapable of giving consent
*NB: this is extended to other scenarios of necessity: bystanders helping at crash scenes, care workers
Lawful Arrest
If a police officer lawfully arrests someone pursuant to a valid warrant, he or she does not commit the tort of
battery provided the officer uses only reasonable force to carry out the arrest (Police and Criminal Evidence
Act 1984).
STEP 4: conclusion.
1
,Defamation Analysis
STEP 1: introduction.
STEP 2: definition + elements to prove.
STEP 3: defences.
Truth
The defendant has a complete defence if his statement is factual, and the facts are substantially true (s.2
Defamation Act 2013). (ATF).
Honest Opinion
The defendant has a defence if his statement is:
An expression of opinion (rather than fact) as set out s3 Defamation Act 2013
In particular, the statement will have to fulfil the following conditions:
1. The statement was a statement of opinion
2. The statement set out the basis of the opinion expressed therein; and
3. An honest person could have the opinion on the basis of-
Any fact which existed at the time the statement complained of was published
Anything asserted to be a fact in a privileged statement published before the statement
complained of
This defence will be defeated if the claimant is able to show that the defendant did not hold the
opinion
o Pursuant to s3(6) Defamation Act 2013, entities reproducing someone else’s statement (e.g.
a newspaper publishing a letter from a reader) would only be liable if the claimant is able to
show that the publisher knew that the author of the statement did not hold the opinion
expressed
Public Interest
On a matter of public interest as per s4 Defamation Act 2013
A defendant has a valid defence against an action for defamation for both statements of facts and
statements of opinion if he can show that:
1. The statement complained of was on a matter of public interest; and
2. The defendant reasonably believed that publishing the statement complained of was in the
public interest
Under s4 Defamation Act 2014, the court must
o Have regard to all circumstances of the case and
o Make allowances for editorial judgment when determining whether or not the defendant
reasonably believed that publishing the statement complained of was in the public interest
Qualified Privilege
Applies to statement both of fact and opinion
There is a defence where the maker of a statement has a duty (legal, moral or social) to make the
statement, and the recipient has an interest in receiving the information
This defence does not apply if the claimant can show that the defendant acted with malice in making
the statement
Misuse of private information
Following Campbell v MGN Ltd, the action for misuse of private information will succeed if the
claimant can show that two conditions are satisfied:
2
, 1. The information divulged must be private
This can be established by analysing whether the claimant had a reasonable expectation of
privacy in relation to the information disclosed
2. There must not be a legitimate public interest in disclosure of the information
For example, there would be a legitimate public interest in the disclosure of the private
information if the publication could
o Show that the claimant had previously lied on the matter disclosed,
o That the claimant had engaged in illegal or iniquitous behaviour or
o Where it concerns political figures in their public role
If private information is divulged in breach of confidential relationship (especially a
contractual duty of confidence), then it is more likely than this tort has been committed
STEP 4: conclusion.
3
