No additional materials are provided for the following ten 'knowledge' questions. Please read each question carefully and select an answer from those available.
Question 1
Marks: 1 Which of the following is the correct definition of assault:-
Choose one answer. A. A person intentionally causes another to fear for his or her own safety
B. A person intentionally causes another to fear immediate and unlawful force
C. A person intentionally causes another to apprehend the application of immediate and unlawful force
D. A person intentionally causes another to reasonably apprehend the application of immediate and unlawful force on his person
E. Don't know
Feedback
The correct answer is (c).
Apprehension, not fear, is required - therefore the answers mentioning fear are incorrect. Furthermore, the apprehension of immediate and unlawful force must be reasonable: see Thomas v NUM (South Wales Area) [1986] Ch 20.
Incorrect
Marks for this submission: 0/1.Question 2
Marks: 1 Can silence ever amount to an assault?
Choose one answer. A. No
B. Yes, if the victim apprehends the possibility of imminent force
C. Yes, provided that the other party intends to upset the victim
D. Yes, if the victim is intentionally caused to apprehend the possibility of imminent force due to silent telephone calls
E. Don't know
Feedback
The correct answer is (d).
The House of Lords in R v Ireland and Burstow [1998] A.C. 147 made it clear that mere words (and, in certain circumstances, silence) could amount to an assault, but much would depend on the circumstances. Lord Steyn commented that 'The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying, "Come with me or I will stab you." I would, therefore, reject the proposition that an assault can never be committed by words. That brings me to the critical question whether a silent caller may be guilty of an assault. The answer to this question seems to be to be "Yes, depending on the facts."... Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions ... As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller's potentially menacing call and calls on the victim' (at page 162). The liability is not confined to silent telephone calls and depends on the effect of the conduct on the victim (rather than on the other party's intention).
Incorrect
Marks for this submission: 0/1.Question 3
Marks: 1 Which of the following statements is not a battery?
Choose one answer. A. Giving a work colleague a kiss
B. Throwing water at a work colleague
C. Bumping into a work colleague in the corridor
D. Hitting a work colleague very hard on the back to congratulate him or her
E. Don't know
Feedback
The correct answer is (d).
A battery is the intentional and direct application of force to another person. Giving a work colleague a kiss is a battery unless, of course, there is consent. Bumping into a work colleague in the corridor may technically amount to a direct application of force to another person, but such ordinary contact will not be actionable: see Wilson v Pringle [1986] 2 All E.R. 440. Whilst bumping into a colleague may be seen as part of ordinary life, hitting her or him very hard on the back, even in congratulations, or throwing water would be seen as exceeding what is ordinarily acceptable in such circumstances.
Correct
Marks for this submission: 1/1.Question 4
Marks: 1 The tort of false imprisonment requires which of the following?
Choose one answer. A. Imprisonment
B. That the defendant falsely justifies his or her interference with the victim's freedom of movement
C. That the victim is confined by someone who is not a police officer
D. That there is a complete restriction on the victim's freedom of movement
E. Don't know
Feedback
That's correct.
The tort of false imprisonment does not require actual imprisonment, but that the defendant imposes a complete restriction on the victim's freedom of movement: see Bird v Jones (1845) 7 QB 742. It is not a requirement that the defendant is not a police officer, although a police officer will not be liable under this tort if his or her actions are expressly or impliedly authorised by law. The defendant's actions must be intentional, but need not involve any false statement of fact.
Correct
Marks for this submission: 1/1.Question 5
Marks: 1 Which of the economic torts typically involves the defendant threatening to act in an unlawful manner towards a third party with the intention to damage the economic interests of the claimant?
Choose one answer. A. Deceit
B. Intimidation
C. Intentionally inducing breach of contract
D. Conspiracy
E. Don't know
Feedback
That's correct.
The tort of intimidation typically involves an illegal action or threat by the defendant to a third party which aims to harm the economic interests of the claimant: see Rookes v Barnard [1964] A.C. 1129. It is distinct from intentionally inducing breach of contract which does not require that the defendant commits a wrongful act to persuade the third party not to enter into a contract with the claimant: see Lumley v Gye (1853) E & B 216. Conspiracy clearly involves more than one party and deceit requires a specific false statement of fact which is intended to (and which does) influence the claimant's conduct.
Correct
Marks for this submission: 1/1.Question 6
Marks: 1 What is the difference between pure purpose and unlawful means conspiracy?
Choose one answer. A. Only the former requires that the predominant purpose is to harm the claimant's interests
B. A pure purpose conspiracy will also amount to a criminal offence
C. It is a trick question - there is in reality no difference
D. Unlawful means conspiracy requires more than five conspirators
E. Don't know
Feedback
That's correct.
The two torts are distinct, although they are both forms of conspiracy requiring two or more persons to conspire: it is therefore incorrect to say either that there is no difference. The tort of conspiracy also has no relationship nowadays with criminal law despite their common origins and so it is incorrect to say that a pure purpose conspiracy will also amount to a criminal offence, although there may of course be a possibility that the conspirator's conduct amounts to a criminal offence. Only pure purpose conspiracy requires that the predominant purpose of the conspirators is to injure the claimant: see Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] A.C. 435. This is not the case for unlawful means conspiracy: see Lonrho v Fayed [1992] 1 A.C. 448.
Correct
Marks for this submission: 1/1.Question 7
Marks: 1 Defamation is a tort which protects:-
Choose one answer. A. The claimant's reputation
B. The claimant's privacy
C. The claimant's freedom of expression
D. The claimant's feelings
E. Don't know
Feedback
That's correct.
Defamation protects the claimant's reputation, not his or her feelings or privacy. On this basis, the tort will only occur when a third party discovers the allegation i.e. the words have been published.
Correct
Marks for this submission: 1/1.Question 8
Marks: 1 In which case did a judge make the following statement: 'not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff's] part, but also if it tends to make the plaintiff be shunned and avoided'?
Choose one answer. A. It was Millett L.J. in Berkoff v Burchill
B. It was Greene L.J. in Byrne v Deane
C. It was Slesser L.J. in Youssoupoff v MGM Pictures Ltd.
D. It was Lord Atkin in Sim v Stretch
E. Don't know
Feedback
That's correct.
In Youssoupoff, Slesser L.J. expanded the definition of defamatory to include words which cause a person to be shunned or avoided (at page 587). He continues: 'It is for that reason that persons who have been alleged to have been insane, or be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'
Correct
Marks for this submission: 1/1.Question 9
Marks: 1 The falsity of the defamatory statement:-
Choose one answer. A. Must be proved by the defendant
B. Must be proved by the claimant
C. Is presumed, unless the defendant proves otherwise
D. Is presumed
E. Don't know
Feedback
That's correct.
Defamatory statements are presumed to be untrue, unless the defendant proves otherwise. This can be achieved by establishing the defence of justification or truth. This gives the claimant a considerable advantage, but has not been found to be contrary to Article 10 of the European Convention on Human Rights.
Correct
Marks for this submission: 1/1.Question 10
Marks: 1 Which of the following is not a defence to the tort of defamation:-
Choose one answer. A. Qualified privilege
B. Mistake
C. Consent
D. Innocent dissemination
E. Don't know
Feedback
That's correct.
It is no excuse that the defendant is mistaken if his or her statements are defamatory, refer to the claimant and have been published. The mistake may, however, enable the defendant to rely on sections 2-4 of the Defamation Act 1996 (procedure for unintentional defamation).
Correct
Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers to an extract. Please make sure you read the relevant extract before answering the questions below.
Please read the speech of Lord Bingham in the case of Jameel v Wall Street Journal Europe SPRL (No 2) [2006] UKHL 44, [2006] 4 All E.R. 1279, then answer the six questions (Q11 - Q16) that follow. Note that this is a very recent case and so not covered in your Subject Guide, but deals with an application of the principles described at 12.3.3.
Context
The claimants (a prominent Saudi Arabian businessman and the trading company of which he was president and general manager which was incorporated in Saudi Arabia) began proceedings for defamation against the defendant. The defendant had published a newspaper article which had been edited and printed in Belgium and distributed in Europe, the United States and the Middle East which asserted that, at the request of United States enforcement agencies, the central bank of Saudi Arabia was monitoring certain bank accounts to prevent their use for channelling funds to terrorist organizations which included that of the claimants' trading group. Although the company neither owned property nor traded in the United Kingdom, it had a commercial reputation here. The defendant sought to rely on a defence of qualified privilege.
Question 11
Marks: 1 Why was the company able to sue for libel when it had not shown that it had suffered financial loss?
Choose one answer. A. Because it had a commercial reputation in the United Kingdom
B. Because it traded mainly in the United Kingdom
C. Because it was incorporated in the United Kingdom
D. Because the company owned property in the United Kingdom
E. Don't know
Feedback
That's correct.
Libel is actionable per se, that is, without proof of damage. Although the company did not trade, nor own property in the United Kingdom and was incorporated in Saudi Arabia, provided it can show that it possesses a commercial reputation in the United Kingdom, it may bring an action for libel. The courts draw no distinction between individuals and companies.
Correct
Marks for this submission: 1/1.Question 12
Marks: 1 The rule that companies can sue for defamation is, according to Lord Bingham, consistent with Article 10 of the European Convention on Human Rights because:-
Choose one answer. A. It has not been challenged in the European Court of Human Rights
B. English law should be permitted to establish its own rules of defamation
C. Article 10 gives only a qualified right to freedom of expression, which allows necessary and proportionate restrictions
D. The argument that defamation can have a chilling effect on freedom of expression is wrong
E. Don't know
Feedback
That's correct.
In paragraph 20, his Lordship makes it clear that the question of recovery of damages for defamation by a trading corporation which has not proved financial loss has been subject to challenge before the European Commission and Court and that the court did not hold the current rule to be necessarily inconsistent with Article 10. The Human Rights Act 1998 gave domestic effect to the European Convention on Human Rights and includes reference to Article 10: it is therefore incorrect to say that English law should be permitted to establish its own rules of defamation. His Lordship also notes that the chilling effect argument has been exaggerated in this context, but does not indicate that it has no force: it is therefore incorrect to say that the chilling effect argument is wrong. Paragraph 19 shows that the answer that Article 10 gives only a qualified right to freedom of expression is correct.
Correct
Marks for this submission: 1/1.Question 13
Marks: 1 Does Lord Bingham express any reservations about the ability of trading corporations to obtain damages for libel without proof of damage:-
Choose one answer. A. No. The tort of defamation exists to afford redress for all unjustified injuries to the reputation
B. Yes, if the damages awarded are excessive
C. Yes, where defamation of the company involves defamation of directors and individuals who are able to sue in their own right
D. No. The law is currently Convention-compliant
E. Don't know
Feedback
That's correct.
His lordship does express a reservation - see paragraphs 19 and 27 - and thus both "No" answers are incorrect. He expressly rejects the argument regarding a situation where directors and individuals are able to sue in their own right: see paragraph 21.
Correct
Marks for this submission: 1/1.Question 14
Marks: 1 To establish the defence of qualified privilege, it is necessary that:-
Choose one answer. A. The article published is in the public interest
B. The article published is of topical interest
C. The article published concerns a matter of political interest
D. The article published engages the interest of the public
E. Don't know
Feedback
That's correct.
Lord Bingham in paragraph 31 states that 'The necessary precondition of reliance on qualified privilege in this context is that the matter published should be one of public interest. In the present case the subject matter of the article complained of was of undoubted public interest. But that is not always, perhaps not usually, so. It has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest.' His Lordship thus distinguished the 'public interest' from something that engages the interest of the public. Public interest is also distinct from matters of topical and political interest, which may be in the public interest, but not necessarily so.
Correct
Marks for this submission: 1/1.Question 15
Marks: 1 In applying Lord Nicholls' ten criteria in Reynolds (2001), a court must:-
Choose one answer. A. Ensure that all 10 criteria are met
B. Examine whether the article could have been published without the inclusion of the particular ingredient complained of
C. Establish whether the thrust of the article is true
D. Use the criteria as pointers to indicate on the facts of each case whether the publication is protected by qualified privilege
E. Don't know
Feedback
That's correct.
Lord Bingham states that Lord Nicholl's criteria are guidance, not an absolute test. It is therefore incorrect to say that all ten must be met. Although the issue of whether the ingredient giving rise to the complaint was necessary for publication and the issue of the truth of the thrust of the article might be relevant to the court's decision, they will not always be significant: see paragraph 34. The use of the criteria as pointers as to whether or not the publication is protected by qualified privilege therefore represents his Lordship's view of the preferred approach to the Reynolds criteria.
Correct
Marks for this submission: 1/1.Question 16
Marks: 1 In Jameel, did his Lordship find the defence of qualified privilege to exist?
Choose one answer. A. Yes. On balance, the test of responsible journalism had been satisfied
B. No. The claimants should have been given a right of reply
C. Yes, because it is no longer necessary to attempt to give a right of reply or comment on the article
D. No. The article was not in the public interest
E. Don't know
Feedback
That's correct.
Despite his Lordship's doubts, Lord Bingham does find the publication to be protected by qualified privilege and so the two "No" answers are incorrect. The answer that "it is no longer necessary to attempt to give a right of reply or comment on the article" goes too far - his Lordship in paragraph 34 considers the impact of the newspaper's failure to obtain a comment, but finds, on balance, that it did not lead to a failure of responsible journalism.
Correct
Marks for this submission: 1/1.Application
Please answer the following four examination questions (Q17 - Q20):
Question 17
Marks: 1 David tells Goliath: 'if I was not studying for my Tort Multiple Choice Test, I would strike you dead.' He is, in fact, diligently studying for his Tort Multiple Choice Test. Which of the following is correct?
Choose one answer. A. David commits an assault
B. David commits a battery
C. David intentionally causes Goliath nervous shock
D. David doesn't commit assault or battery, nor does he intentionally cause nervous shock
E. Don't know
Feedback
That's correct.
Here, the words negate what would otherwise be an assault - Turberville v Savage (1669) 1 Mod Rep 3 - and so David does not commit an assault. Equally, there is no direct application of force amounting to a battery, nor any evidence of intentionally inflicted nervous shock. It must therefore be the case that David does not commit any of these torts.
Correct
Marks for this submission: 1/1.Question 18
Marks: 1 Keith tells Lenny that Lenny's fiancée has had an accident on the eve of their wedding. Lenny collapses with shock. Keith laughs and tells him that it was a joke. Which of the following actions could Lenny bring against Keith?
Choose one answer. A. Assault
B. Battery
C. Intentionally causing nervous shock
D. Defamation
E. Don't know
Feedback
That's correct.
Assault requires the reasonable apprehension of immediate and unlawful force on the person - there is no evidence that Lenny had any such apprehension. Battery requires the intentional and direct application of force to another person - again this has not occurred. The statement does not harm Lenny's reputation as required by defamation. The facts indeed resemble those of Wilkinson v Downton [1867] 2 Q.B. 57, whose principle is stated in the answer "Intentionally causing nervous shock".
Correct
Marks for this submission: 1/1.Question 19
Marks: 1 James, a journalist, writes the following story which is published in the local newspaper, the Daily Rag:
'We are sympathetic towards Dr Morris - after all, it must be upsetting to find out that no-one leaves her surgery alive!'
Several patients have recently died at Dr Morris' clinic due to natural causes. There is no evidence that Dr Morris is anything but an excellent physician. Which of the following is a jury likely to find?
Choose one answer. A. The statement is not defamatory as it is sympathetic towards Dr Morris' plight
B. The statement is defamatory, but James has a good defence of justification
C. The statement is defamatory due to an innuendo that Dr Morris is incompetent. This is not true
D. The statement is defamatory, but James, as a journalist, can rely on the defence of qualified privilege
E. Don't know
Feedback
That's correct.
The statement contains an innuendo that Dr Morris is incompetent. There is no evidence that it is true and no basis given to sustain a defence of qualified privilege under the Reynolds test of responsible journalism.
Correct
Marks for this submission: 1/1.Question 20
Marks: 1 Fred takes Barney to one side and tells him that he is a liar and a cheat. Barney's business partner, Betty, happens to be leaning out of a window above them and hears every word. As a result, she decides to terminate the partnership and Barney loses his investment in the business. Is Fred?
Choose one answer. A. Not liable in slander because he had no intention to publish the words
B. Not liable in slander because Barney suffers no damage
C. Not liable in slander because Betty should not be listening to private conversations
D. Not liable in slander because it was unforeseeable that Betty would overhear the words
E. Don't know
Feedback
That's correct.
Slander requires special damage in addition to the usual requirements for defamation, except in four exceptional cases. The words have been published if a third party hears them and intention is irrelevant. As a result it is incorrect to assert that Fred is not liable because he had no intention to publish the words. Barney suffers financial loss as a result of the statement and so it is incorrect to say he suffers no damage (arguably, it would be actionable per se in any event due to the damage to Barney's professional reputation under section 2, Defamation Act 1952). However, it must be reasonably foreseeable that someone would overhear (see Theaker v Richardson [1962] 1 W.L.R. 151). It is only by chance that Betty overhears what was meant to be a private conversation and so the answer is that Fred could not have foreseen this and is therefore not liable in slander. The courts will not, however, make moral judgements as to people listening to other people's conversations - the test is an objective one of reasonable foresight and therefore it is incorrect to use the subjective opinion that Betty should not have been listening.
Correct
Marks for this submission: 1/1.
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