PRIVILEGE
1. This could either be absolute (statement made in parliaments by MPs - Hamilton v Al Fayed (2000; s.13 of Defamation Act 1996) reports ordered published by parliament, judicial proceedings or report of court proceedings (s.14 of Defamation Act; Chatterton v Secretary of State for India (1895) or Qualified privilege, applicable where freedom of speech should be protected but not where the author is activated by malice - Horrocks v Lowe (1975). The judge would look at each case on its merit - Reynolds v Times Newspaper Ltd (2001). Reynold test (serious of allegation, nature of information, step taken to verify, status of information, comment sought from claimant, tone of article, whether the gist of the claimant side has been told, general circumstance and timing of publication. It is a test of reasonable journalism.
2. Qualified Privilege under statute: Found under s.14 and schedule 1 of the Defamation Act.
3. Innocent dissemination:: s.1 of Defamation Act. Defendant need to show that he is not the author/publisher, took reasonable car, did not know or has any reason to belief that she caused or contributed to the publication
4. Unintentional defamation.: s.2-4 of DA 1996. Defendant can publish an apology and pay compensation. s.2
5. Consent: It is a defence if the claimant has expressly or implied consented to the publication - Cookson v Harewood (1932); Chapman v Lord Ellesmere (1932)
REMEDIES
6. Two types of remedies i.e. Damages and Injunctive relief. Damages are assessed by the jury and may includded aggravated damgages (where D's conduct led to mental distress) or exemplary damage (where D deliberately set out to profit at the expense of C's reputation). S.12(1) and 4 of the HRA 1998 which asked court to have particular regards to freedom of expression would be considered.
7. Concern has been expressed that the jury is not the best body to assess damages due to notoriously high awards. s.8 of the Court and Legal Services Awards Act 1990 empowers court of appeal to subsitute the figure without need for retrial. Case of Rantzen v Mirror Group Newspapers (1986) John v Mirror Group Newspaper (1997) seek to increase judicial guidance.
EXAMINATION ADVICE
8. An essay question will focus on interest protected by defamation and compare it with the provisions of which provide for freedom of expression (Art. 10 of HRA). Problem question tend to focus on various statement and whether they are defamatory (refer to the claimant, published and require student to identify any defences which may exist. Students must also be able to distinguish defamation from claim for harassment, injury to privacy rights and malicious falsehood. Harassment is now covered by the Protection From Harassment Act 1998, Privacy is protected by breach of confidence, and malicious falsehood deals with false statements of fact which can be shown to damage the business interest of the claimant - Khodaparast v Shad (2001)
9. Is it realist to allege that the statement tend to lower the plaintiff in estimation of right thinking members of the society generally (Sim v Strtch (1930); Knuppfer v London Express Newspaper will make it difficult for a member of a group to show that a statement points directly at him. However, this may be easier where the group is small (3 in this case). Where it proven that the statement is defamatoty, it needs to be shown that it refer to the claimant and must have be published, then we need to look at the defences. Are the words used substantially true Alexander v North Eastern Railway Co. (1865) every allegation or sting must be jusfified Cruise and another v Express Newspapers Plc (1999). Fair comment as a defenced must be based on substantium of fact Kemsley v Foot (1952)and qualified privilege (Reynolds v Times Newspaper (2001) sensational journalism or statement indicative of malice are unlikely to be found to amount to responsible journalism. Inuendo (Cassidy v Daily Mirror Newspapers Ltd (1995). If the explanation was not immediately apparent to the reader, the court will not find the statement defamatory Charleston v News Group Newspaper Ltd (1995). It is defamatory to accuse a young woman of relationship with an older man Youssoupoff v MGM Pictures Ltd (1934). Since her name was not mentioned, she needs to prove that a reasonable person would on the fact have drawn the inference (Morgan v Odhams Press Ltd (1971).
VICARIOUS LIABILITY
10. Vicarious liabilities mean one person (not a tortfeasor) is liable for a tort committed by someone else. There are three distinctions between primary liability and vicarious liability and these are:
11. Home Office v Dorset Yacht Co. (1970). The home office was vicariously liable for the torts of the borstal officers. But neither the Home Office nor the borstal Officers were vicariously liable for the torts of the boys. The officers were primarily liable for failing to control the boys and enabling them escape and damage a yacht.
12. Attorney-General of the British Virgin Island v Hartwell (2004): The claimant was successful that the police authority were liable for their own negligence for allowing the policeman to remove the gun from the police station for his own use, but fail that on the argument that the police authority were vicariously liable for the torts committed by the police man – the policeman is primarily liable for his torts.
13. McDermid v Nash Dredging & Reclamation Co. Ltd (1987): The claimant was an employee and both vicarious liability and the employer’s non-delegable duty of care (a form of primary liability) were possible routes to success for the claimant.
14. There are at least two practical advantages for the doctrine is (1) an employer is much more likely to have assets to pay damages and be insured against liability than an individual employee (2) it may sometimes be unclear which of a number of employees have actually committed the tort. The following are some of the theories to justify the doctrine:
a) The employer has established a business and derives and derives the economic benefits of commercial success and should therefore be liable if the risk arising from the business materializes
b) The employer is more like to take staff training and supervision seriously if they know they could be vicariously liable.
15. To succeed in a claim it is necessary to establish that (1) the alleged tortfeasor was an employee (2) the employee committed the tort; and (3) the tort was committed in the course of employment. It is necessary to distinguish between an employee and an independent contractor (a chauffeur and driver), this is usually determine by the contract of employment. An employer has greater employment rights and protection and there are different tax and national implications for employees.
16. In arriving at a distinction between employee and independent contractor the courts have adopted an impressionist approach i.e. the extent the employer can control how the employee does the job; how far the individual is integrated into the business; considered where the balance law in arriving at decisions. Some of the illustrative cases are Stevenson Jordan & Harrision v Macdonald & Evans (1952); Market Investigations Ltd v Minister of Social Security (1969) Hall (Inspector of Taxes) v Lorimer (1994).
17. Borrowed servants present peculiar problem. Where a company supply a crane and the driver, it is presumed that the lending company unless this is clearly displaced on the facts Mersey Docks & Harbour Board v Coggins and Grifiths (Liverpool) Ltd (1947); Bhoomidas v Port of Singapore Authority (1978). The effect of contract between two competing employers was considered in Philips Products v Hyland (1987) and Thompson v T. Lohan (Plant hire) Ltd (1987);
18. There is a special case of vicarious liability called ‘casual delegation’ the court held the owner liable for the negligence of a driver who is driving with the owner’s permission and at least to some extent for the owners purposes. Ormrod v Crossvile Motor Services Ltd (1953). Attempt to create family car by Lord Dennings in was rejected by the House of Lords in Morgan v Launchbury (1973).
19. The employee can take advantage of any defence but where for any reason the employee who committed the tort cannot be sued, the employer cannot take advantage of such defence Brown v Morgan (1953).
20. A master is liable even for the act which he has not authorized provided they are so connected with the act he has authorized and they may be regarded as modes – although improper modes – of doing them. Century Insurance Co. Ltd v Northern Ireland Road Traffic Board (1942); Board v London General Omnibus Co. (1900); General Engineering Services Ltd v Kingston and St. Andrew Corporation (1989).
21. Where an employee deviated (Williams v Hemphill 1966) or does something specifically forbidden Plumb v Cobden Floors Mills Co. Ltd (1914) the employer could still be liable depending on the level of deviation or whether the prohibition limited the sphere of employment.
22. The Lister test apply where there is close connection between the tort and what the employee expected to do Mattis v Pollock (2003) (vicarious liability imposed); Attorney General of the British Virgin Islands v Hartwell (2004) vicarious liability rejected, but employer primarily liable).
23. Even though the employers is vicariously liable, the employee remains liable and the employer can recover from the employee the amount of damages paid to the claimant DEFENCESLister v Romford Ice & Cold Storage Co. Ltd (1957).
24. Contributory negligence: Successful pleading was a complete defence, but Law Reform (Contributory Negligence) Act 1945 now provides for apportionment of liability between the claimant and the defendant. e.g. contributing to the accident motorcyclist by failing to look out for other vehicles or contributed to the injury by failing to wearcrash helmet (Jones v Boyce (1816); Jones v Livox Quarries (1952); Froom v Butcher (1975);
25. Consent: The claimant who consent to surgery, but where the tort involved in negligence or a tort of strict liability, consent may not provide defence for the defendant.
26. The defence of violenti non fit iniuria (damage is not done to someone who consents) cannot operate until there has been a tort. The claimant who work in dangerous job cannot complain of tort if employers observe all regulations. The issue of consent only arises if there has been a breach of regulations or of the common law duty, and it is argued that the claimant knew of this breach and nevertheless agreed to face the risk.
27. Consent can operate by either ss2(1) and 2(5) of the Occupiers’ Liability Act 1957. Exclusion of liability will only be effective knew of the terms in advance, the terms clearly covered the situation and the claimant was free to choose whether to encounter the risk or not. The statutory intervention are UCTA 1977; The Road Traffic Act 1998.
28. Agreement to face physical risks. The court have insisted that the employee must not merely know about the danger but freely consent to run the risk (Smith v Baker (1891). In the case of a car passenger and learner who is drunk. The passenger should be unable to sue because of consent or D owe duty of care expected of the person with similar characteristics - Dann v Hamilton (1939) KB; Insurance Commissioners v Joyce (1948; Cook v Cook (1986)
29. The Road Traffic Act 1988 prevents the defence applying to cases of road accidents, although it may apply in other kinds of traffic accident to which the 1988 Act does not apply Pitt v Hunt (1991) (road accident; Morris v Murray (1991) (aircraft accident)
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30. Action by spectator or competitor in sporting event against organiser/competitor. The defedant owe a lesser duty appropriate to someone striving to succeed in a competitive activity Woodrige v Summer (1963); white v Blackstone. The defence may not apply where D is under a duty to protect the claimant Reeves v Commissioner of Police for the Metropolis (2000). Applying the defence to negligence cases needs care.
ILLEGALITY
31. On the particular fact there is no relevant basis on which (the appropriate standard of care could be determined) Pitts v Hunt (1991); Revell v Newbury (1997) Clunes v Camden and Islinton Health Authority (1998); Vellinov v Chief Constable of Greater Manchester Police (2002)
DAMAGES
32. Damages are the the commonest remedy for tort. General critique of the way in which damages are assessed are three levels
a) Given the objective of the presents system doesn't achieve
b) Should the payment be madeon monthly basis reflecting on the claimant's condition at the time of payment
c) Should the system of damage be abolished and absorbed within the social security system.
33. Principles: Assessment of damages are laid down by common law with some statutory modification (Administration of Justice Act 1982) Damages Act 1966; Lim Poh Choo v Camden and Islinton Authority (1980)
b) Place the claimant where he would have been without the tort; compensation based on lost but not present need; damages are awarded once and for all and cannot be re-opened. There is very limited power to award provisional damages in the Administration of Justice Act s.6 and Damages Act s.3.
34. Damages are calculated based on (1) Pecuniary damage - compensation paid for money (loss income - using multiplier method and mutliplicand is the claimant's net (after deducting tax, etc, using low risk investment for the compensation - Wells v Wells (1999); Damages Act 1996 s.1 Damages (Personal Injury) Order 1001) For assumption on future Mallet v McNonagegle (1970) the claimant has lost and expenditure incurred (medical treatment, future institution care, adaptation of hone and assistance with daily routine) as a result of tort.
35. Where tort reduced claimant lost life, the claimant should be compensated for those year less the amount he would have spent on himself Pickett v British Rail Engineering !9980. Where claimant receive money from other sources as a result of the tort,there are three possible theory solution (1) the sums are deducted from the damages payable by the tortfeasor (tortfeasor gets benefits of victim prudence or others generority) (2) the claimant keeps these benefit and also damages (overcompensation) (1) the tortfeasor pays back the donor (high administrative cost).
36. Social Security (Recovery of Benefits) Act 1997; Parry v Cleaver (1970); Smoker v London Fire & Civil Defence Authority (1991) ensures that the tortfeasor pays back some social security payment to the state.
NON-PECUNIARY
37. Non pecuniary damage is compensation for pain and suffering and for loss of amenities. These could be paid Structure settlements involves calculation of a lump sum, sanctioned by statutes Damages Acts 1996, not taxable but return on investment made with the payment is taxable.
39. Law Reform (Miscellaneous Provisions) Act 1934 and Fatal Accidents Act 1976 remedied the common law positions that a cause of action in tort lapsed if either party died and that the dependant on the disease cannot be a action for loss of support respectively. 1976 Act provided for more damages than 1934 Act.
40. When the victim survived tort for sometime and died later, the estate can sue for damages for loss of earnings, medical expenses, pain and suffering between tort and death, where death is instantaneous, there is little or nothing payable (Hicks v Chief Constable of South Yorkshire Police (1992) - Administration of Justice Act s.4
41. Dependants have some right of actions unde the Fatal Accidents Act 1976. Look at changes made by Wells v Wells and Heil v Rankin.
42. Jamie seem to have committed battery, throwing a ball is not part of umpire job. Has he commmitted the tort in the course of employment Lister v Hasley Hall might not be of help as it is not sure if he was performing the club's or pastoral duties. Older cases (poland v Parr and Warren v Henlys) would suggest that if the battery was to protect employer's interest it might be in the course of employment, here it seems as a result of personal annoyance at the damage to Jamies car. It is then necessary to explain the principles on which damages will be assessd for pecuniary and non pecuniary damges including the problem where the claimant is quite young and the job prospect relatively uncertain
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