Defamation LIBEL AND SLANDER at Law of Tort Paper VI Part I

Defamation

DEFINITION

A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society.

WHAT HAS TO BE PROVED

Subject to the differences between the two types of defamation, libel and slander (explained below), the claimant must prove:
(1) That the statement was defamatory,
(2) That it referred to him, and
(3) That it was published, i.e. communicated, to a third party.
The onus will then shift to the defendant to prove any of the following three Defences:
(1) truth (or justification),
(2) fair comment on a matter of public interest, or
(3) that it was made on a privileged occasion.
In addition, some writers put forward the following as defence in their own right:

(4) Unintentional defamation, and
(5) consent.

DISTINCTION BETWEEN LIBEL AND SLANDER

The basic differences between the torts of libel and slander are as follows:
(1) Libel is a defamatory statement in permanent form, Writing.
 Slander is a defamatory statement in a transient form.
(2) Libel is actionable per se whereas damage must be proved for slander, except in four instances:
Where there is an allegation that the claimant has committed an imprison able offence;
Where there is an imputation that the claimant is suffering from a contagious disease, such as venereal disease, leprosy, plague and, arguably, HIV/AIDS;

Where there is an imputation that the claimant is unfit to carry on his trade, profession or calling.

(3) Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.

 ESSENTIALS OF DEFAMATION

(1) WORDS MUST BE DEFAMATORY

The statement must be defamatory. According to Lord Atkin, the statement must tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem.

   (2) REFERENCE TO THE CLAIMANT

The statement must refer to the claimant, ie, identify him or her, either directly or indirectly.

 

Defamation of a class

If a class of people is defamed, there will only be an action available to individual members of that class if they are identifiable as individuals. "If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual" If the defendant made a reference to a limited group of people, e.g. the tenants of a particular building, all will generally be able to sue.

 Unintentional defamation

At common law it was irrelevant that the defendant did not intend to refer to the claimant. A publication made 'maliciously' (spitefully, or with ill-will or recklessness as to whether it was true or false) will destroy the defence of unintentional defamation.

(3) PUBLICATION

The statement must be published, ie communicated, to a person other than the claimant.
 Communication between husband and wife
A statement made to one's own spouse will not be 'published' for the purposes of defamation (Wennhak v Morgan (1888) 20 QBD 635 at 639). Communication between husband and wife is protected as any other rule "might lead to disastrous results to social life".
 Distributors
The defence sometimes known as 'innocent dissemination' is designed to protect booksellers and distributors of materials which may contain libelous statements. A person has a defence if he shows that he was not the author, editor or commercial publisher of the statement; he took reasonable care in relation to its publication; and he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement

 Consent

Consent of the claimant to the publication of a statement, by showing other people defamatory material which the defendant meant for the claimant only, will create a situation in which technically there has been no publication (Hinderer v Cole (1977) (unreported) - defamatory letter sent by the defendant to the claimant was shown by the claimant himself to third parties).
 DEFENCES

(1) TRUTH (OR JUSTIFICATION)

Only false statements are actionable, so if the statement made about the claimant is true, there can be no action for defamation. The burden of proof is on the defendant to prove that the statement made is true, rather than on the claimant to prove that it was false.

 (2) FAIR COMMENT ON A MATTER OF PUBLIC INTEREST

The defence of fair comment is frequently relied upon by the press, as it is designed to protect statements of opinion on matters of public concern.
The defence only applies to comments made on matters of public interest, e.g. comments on works of literature, music, art, plays, radio and television; and also the activities of public figures.
A publication made 'maliciously' (spitefully, or with ill-will or recklessness as to whether it was true or false) will destroy the defence of fair comment.

 (3) PRIVILEGE

(a) Absolute

There are certain occasions on which the law regards freedom of speech as essential, and provides a defence of absolute privilege which can never be defeated, no matter how false or malicious the statements may be. The following communications are 'absolutely privileged' and protected from defamation proceedings:
Statements made in the course of judicial proceedings or quasi-judicial proceedings.
Communications between lawyers and their clients.

 (b) Qualified

Qualified privilege operates only to protect statements which are made without malice (ie, spitefully, or with ill-will or recklessness as to whether it was true or false).
The judge must decide whether the situation is covered by qualified privilege. If so the jury must then decide whether the defendant acted in good faith or whether there was malice.

 This defence was recently tested in:

Loutchansky v Times Newspapers (QBD, 27 April 2001).



 

Defamation, Libel and Slander at Law of Tort Paper VI Of LLB Part I

Defamation, Libel and Slander Law

Contents

• What Are Defamation, Libel and Slander
• What Defenses Are Available to People Accuse of Defamation?
• Public Figures
• Why Commencing a Defamation Action Is Not Always a Good Idea

It is not unusual for attorneys to receive inquiries about defamation actions from people who are in conflicts with neighbors or other members of their communities, and have become the subjects of vicious lies. The area of law most implicated by that type of conduct is "defamation of character", a cause of action which is generally defined to include "libel" and slander".

What Are Defamation, Libel and Slander?

Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.
Typically, the elements of a cause of action for defamation include:

1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.

In the context of defamation law, a statement is "published" when it is made to the third party. That term does not mean that the statement has to be in print.
Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish.
Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may constitute defamation per se:

• Attacks on a person's professional character or standing;
• Allegations that an unmarried person is unchaste;
• Allegations that a person is infected with a sexually transmitted disease;
• Allegations that the person has committed a crime of moral turpitude;

While actions for defamation have their roots in common law, most jurisdictions have now enacted statutes which modify the common law. They may change the elements of the cause of action, limit when an action may be filed, or modify the defenses to an action for defamation. Some may even require that the defendant be given an opportunity to apologize before the plaintiff can seek non-economic damages.

What Defenses Are Available To People Accused of Defamation?

The most important defense to an action for defamation is "truth", which is an absolute defense to an action for defamation.
Another defense to defamation actions is "privilege". For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the legislature, or by judges while sitting on the bench, are ordinarily privileged, and cannot support a cause of action for defamation, no matter how false or outrageous.
A defense recognized in most jurisdictions is "opinion". If the person makes a statement of opinion as opposed to fact, the statement may not support a cause of action for defamation. Whether a statement is viewed as an expression of fact or opinion can depend upon context - that is, whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. If your employer calls you a pathological liar, it is far less likely to be regarded as opinion than if such a statement is made by somebody you just met. Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.
A defense similar to opinion is "fair comment on a matter of public interest". If the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation.
A defendant may also attempt to illustrate that the plaintiff had a poor reputation in the community, in order to diminish any claim for damages resulting from the defamatory statements.
A defendant who transmitted a message without awareness of its content may raise the defense of "innocent dissemination". For example, the post office is not liable for delivering a letter which has defamatory content, as it is not aware of the contents of the letter.
An uncommon defense is that the plaintiff consented to the dissemination of the statement.

Public Figures

where a public figure attempts to bring an action for defamation, the public figure must prove an additional element: That the statement was made with "actual malice". In translation, that means that the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth. For example, Ariel Sharon sued Time Magazine over allegations of his conduct relating to the massacres at the Sabra and Shatila refugee camps. Although the jury concluded that the Time story included false allegations, they found that Time had not acted with "actual malice" and did not award any damages.

TRESPASS, TRESPASS TO PROPERTY, TRESPASS TO LAND,Trespass to persons. LLb Part I Paper VI

TRESPASS
By Professor Bob Hughes

In this unit we introduce the action in trespass. After examining the basic principle of trespass, we look particularly at trespass to property. In unit 3 we will examine two of the well-known forms of trespass to the person, namely assault and battery.

Learning objectives

When you have completed this unit, you should be able to:

• explain the basic principles of trespass
• list the various types of trespass.
• differentiate between the two types of trespass to property:
• trespass to land and
• trespass to other types of property.

Contents

Basic principles of trespass *
Elements of trespass *
Types of trespass *
Trespass to property *
Trespass to land *
Trespass to other types of property *
Key terms *
Hints for selected study tasks *
Review questions *

 BASIC PRINCIPLES OF TRESPASS

Trespass is similar to many criminal offences that currently exist. Indeed, as we have already pointed out, there are areas of tort where civil wrongs and criminal wrongs overlap. Kidnapping and abduction are conceptually very close to the torts of false imprisonment. Defamation (i.e. making unfair statements against a person’s character) is a tort that once had a criminal version as well as a civil version.

Trespass is certainly one of these areas of overlap. Many things that were originally called trespass are now known by other names—even in the area of torts itself. We can also find the link of trespass to:

• theft, larceny, burglary and robbery, which are all criminal forms of what was originally called trespass to property; and
• Assault, or assault and battery, rape and so on, which are forms of trespass to the person.

Elements of trespass

Older elements of trespass

The older elements of trespass, as distinct from an action on the case, were as follows:

1. The action involved must be direct in an appropriate sense. The action cannot be regarded as some sort of consequential interference with the defendant’s person or property.

This requirement of directness has been stretched at times. For example, in Scott v Shepherd (1773) 2 Wm B1 892, the defendant threw a lighted firework into a crowd at a market. One person caught it and quickly passed it on to someone else (entirely understandable!) and that person passed it on, and so on until it blew up in the plaintiff’s face. The issue was whether the defendant’s original action was a trespass—in other words, was it direct enough? The court said yes in that case. Others might well have said no.

In general, the courts seem to take the view that something is direct in the appropriate sense if the act and the consequences can be so closely related that they are considered a part of the defendant’s act. Obviously there will be scope for argument about this.

2. As we have said before, a trespass gives rise to an action without proof of injury. If you enter my land without my consent or other legal authority, then you are a trespasser and I can sue you for trespass. I do not have to prove that you have caused any damage to my land or any loss to me at all. We usually describe this situation by saying that trespass is actionable per se (meaning "in itself").

3. Originally, no proof of any fault was required in relation to the action of trespass.

However, as the law evolved, the distinction became rather confused and indirect elements were introduced into some types of trespass action. For example, we can speak of trespass on the case as a particular sort of action that involves a consequential type of interference, rather than a direct one. Trespass on the case is the technical legal name for the particular type of action that evolved here. The courts allowed this because the defendant’s interference was intentional rather than unintentional.

To further complicate matters, in the 19^th century the courts allowed elements of fault in the form of defences to be introduced into actions in trespass. So point 3 was eroded by the creation of new defences such as consent and inevitable accident or necessity.

Requirement of intention

In England, the courts no longer use the concept of directness as the basis for the distinction between trespass and other major types of tortuous action, such as negligence. They now base the primary distinction on whether the act was intended.

• If the act was intended, then the action should be in trespass and trespass alone. It does not matter whether the act involved is direct or indirect, the action must be in trespass.
• If the act was unintentional, then the action should be in negligence. Indeed, the plaintiff has the obligation in an action in trespass to prove that the action was intentional on the part of the defendant.

Other jurisdictions have not followed this path. Courts, for example in Australia, still maintain that the primary distinction is between torts that are direct and torts which are indirect. However, some courts have indicated that they may be receptive to the English approach.

The real issue in terms of the approach is really: where should the law pin the blame in cases where no injury, damage or loss is involved?

If a case concerns an area that requires injury, damage or loss, other issues arise. Namely:

• should the court be concerned with preventing the direct infliction of harm by focusing on the consequences of some action in these cases? or
• should it be looking at the prevention of the intentional infliction of harm?

It is a difficult question, which you need only think about at this time.

TYPES OF TRESPASS

There are two main types of trespass:

• Trespass to property, which has two subcategories of

-trespass to goods, and 
-trespass to land; and

• Trespass to persons.

TRESPASS TO PROPERTY

By now, you should appreciate that trespass is a form of intentional interference. And, obviously, when we are concerned with trespass to property we are concerned with trespass in relation to something that the law regards as property.

Legal definition of property

Property* is one of those terms which has a common meaning and a legal technical meaning. Maybe if we asked non-legal people to define property, they would say that property is "anything which is mine". That is true enough but then they would find it difficult to say what things they can own and what things they cannot. Perhaps land and other physical things are the most obvious examples of property that they would suggest.

However, there are many different senses of the term, and legal systems recognize many things as property other than physical things. You are not expected to understand these details at this point. Let us just say for the moment that you cannot maintain an action in trespass unless you can establish that it involves some form of interference with a person’s property, in its legal sense.

Kinds of Property

The term property is applied to land (sometimes called real estate) and to goods and chattels (moveable things such as household furniture, motor vehicles, books, jewelers and so on).

Personal property* is a term that applies to any property other than land. It includes:

• things which are physical; and
• Other forms of property (intangible property* is the technical term) such as debts due, moneys in a bank account, shares in a company, copyrights and patent rights.

Any form of personal property can give rise to an action in trespass provided that it is capable of possession. This is a rather complicated issue which we will address in greater depth in LA204.

Let us just say for now that if something is not regarded as property in law (e.g. a corpse), then it cannot be the subject matter of an action in trespass.

TRESPASS TO LAND

Trespass to land is one of the oldest forms of action in English law. Its age demonstrates how much importance is attached to rights to the usage of land in the view of the English legal system and elsewhere. Human beings are often highly territorial, and value their right to occupy their land peacefully and without the intrusion of others. The name of the original writ in respect of trespass to land meant "the breaking of the close". "Close" here meant enclosed land.

In the area of trespass to land, you should note that the law is mainly concerned with the protection of a person’s right to possession* of land. It is not so much concerned with the protection of ownership of the land. Thus the possessor*, rather than the owner, of the land has the primary right to sue in trespass (with some complications as regards other torts).

Ownership and possession

Ownership and possession are not the same

There is a considerable difference in law between questions of ownership and questions of possession. So there is certainly significance in the saying that "possession is nine-tenths of the law". However, contrary to a common assumption, the person who takes possession of something does not have an absolute right to it.

You will learn much more about the complicated distinction between ownership and possession when you take property law in the third year. We will consider it in a more simplified form for the present time.

What is ownership?

Ownership normally indicates that a person has:

• the right to possession, or to actual physical control, of the relevant property. Hence it is a right which is superior to possession;
• the right to sell, or give away, the property in question or to leave it to others by will when the owner dies. An owner can carve out lesser interests* in property in favor of others. For example, owners can grant a lease of their property or create a trust over it or mortgage it to the bank as security for a loan; and
• the dominium* (or lordship) over something which is property. It is the highest legal right with respect to private property that is recognized by a legal system. The claims of the State perhaps come first. The claims of the owner come second.

What is possession?

Possession* is the right to have something under your immediate control or use. Persons who are in possession might be able to enjoy their occupation of the land for some time but they will have problems in dealing with the land and creating recognized legal interests in the land. Where ownership is a matter of legal right, possession is a matter of fact.

Rights of ownership normally include the right to possession. However, that right to possession might be lessened by something the owner has done. He or she might have given away rights of possession in the property. Or, as a matter of fact, someone else might simply have assumed possession of the property with or without the owner’s knowledge.

Ownership is always legitimate or "legal". Possession might be either legitimate or illegitimate. But even when it is not legitimately gained, possession can give rise to certain legal rights and protections. Thus even a person who has "stolen" another person’s (the owner’s) property has certain rights, including rights in trespass.

Concept of land

What is land?

The English concept of land includes:

• the surface terrain of the land; and
• the column of air above the surface; and
• the area that is below the surface.

So you can commit a trespass against my airspace. You can also commit a trespass against me by burrowing underneath my land without my consent.

The old legal phrase that expresses this principle is:

cujus est solum ejus est usque ad coelum et ad inferos.

This means "to whom the earth belongs the soil, his it is, even to heaven, and to the middle of the earth". In other words, the land extends upwards to the heavens and downwards as far as the centre of the earth. The vertical column that extends upwards as far as it goes and downwards as far as it goes is my land.

So, trespass to land must concern itself not only with surface rights but also with potential intrusions upon this vertical column. Note that in the modern world, the application of this idea is somewhat restricted by laws which deal with control over airspace, mineral rights and so on. In these areas, the State exercises public rights that have taken over from rights that were once regarded as private.

Basic situations of trespass to land

The following are some basic situations in which there will be a trespass to land. All of these assume that there is possession involved and that the action was intentional. 

If someone comes onto another’s land without the permission of the person who has possession of that land, that is trespass. If that entry is by mistake, then it may be unintentional.

If a person should have permission in order to enter onto the land but the permission is properly revoked, and that person then remains on the land without permission, that is a trespass.

If someone throws some object onto land which is in the possession of another, then that is a trespass.

Leaving the thrown object on the land is also a trespass, just as a person staying on the land without consent is a continuous trespass.

If someone fires a gun and the bullet passes across my land that is a trespass against my land. Firing across my land again is a second trespass.

If my next door neighbor put a ladder up against my house and the foot of the ladder is located on her land, then that is a trespass.

If you erect a sign which hangs above my land, that is a trespass.

If you park a crane in your property but its jib hangs above my land, that is a trespass.

If you bore or mine under my land, that is a trespass against me even though you did not gain entry to the subsoil through the surface of my land.

If your bull has intercourse through the fence with my cow, that is trespass—a special variety called cattle trespass.

A salesperson comes through my front gate. There is a sign on the gate saying "No access to anybody under any circumstances". She has committed a trespass. What about if there was no sign? Would the fact that I have a front gate and a path mean that people have an implied permission of entry? Yes! But if there was no sign and I said "Leave immediately", it would be a trespass for the salesperson to stay.

You invite your friend around for dinner. Over dinner you have an argument with your friend.
You lose your temper, and say, " Get out immediately". 
He says, "I apologize. Please don’t ask me to go".
You say, "You have five seconds to get out".
It would take any fit person at least 30 seconds to run to the front gate. You count down from five and then punch your friend.
In court, you argue that your former friend was a trespasser because he did not leave when you revoked your permission for him to be on the premises. But the revocation of permission has to be reasonable and a person must be able to comply with it in a reasonable time. It is you who are guilty of a trespass here—a trespass to the person, namely battery.

A particular situation of trespass to land may be an isolated incident, or it may be a case where a person remains on land without the consent of the person in possession of it. If the trespass is continuous, there is a separate cause of action in trespass for each day that a person remains on the land without consent.

Action for removal

If someone goes onto land and assumes possession without consent, then the action for removal of that person on the ground of trespass is known as an ejectment* or an action in ejectment. In other words, an ejectment is an action to recover rightful possession of land.

 Trespass to other types of property

The principles of trespass which apply with respect to land can also apply with respect to any form of property which can give rise topossessory rights. Goods or chattels are the obvious example, but bear in mind that a person can also commit trespass with respect to a cheque, a bill of exchange, a debenture note or a share certificate.

Say a person takes a cheque that is written out by you in favour of someone else. You could say that the cheque had been stolen but this would be a criminal law concept. As you will recall many torts are also potential criminal offences. Trespass to personal property is close to the criminal offence of larceny or stealing.

The basic principles of trespass follow the same pattern. But, to complicate matters, there are separate rights of action with respect to:

• trespass to chattels*;
• detinue*; and
• conversion* or trover*.

 Trespass to chattels

Trespass to chattels is usually available with respect to cases where there has been no substantial damage or injury to the property concerned. Trespass to chattels follows the same pattern as trespass to land in most vital respects. The person who is in actual possession prior to the trespass is the person who can sue for trespass to chattels. Again, the taking of somebody's household furniture without the person’s consent and without any other legal justification for removal of it constitutes the tort of trespass. It might be what many would, again, call stealing but that is a criminal concept. In torts it is called trespass to property. Household furniture comes under the description of chattels.

Detinue

Detinue is a right to recover possession of the goods in question, and indeed it is the only common law action that allows recovery of goods as a result of trespass. It is somewhat like ejectment with respect to land. Usually it is necessary to show that there has been a demand made for the return of the goods and a subsequent refusal to return them.

Detinue seeks the specific return of a chattel that has been wrongfully retained. Damages can also be awarded in an action in detinue.

People can sue in detinue in a situation where they were in actual possession or where they have an immediate right to possession. Hence the class of potential plaintiffs is a little wider than in the case of trespass to chattels. In both cases the crucial requirement is that there must be an interference with possession.

Say you lent John a book for an agreed term of three months on the basis that he paid you $5. John, as the person to whom you lent the book is known as a bailee for reward*. He has the immediate right to possession of the book for the period stated. Now if Mere took the book from John he could sue in detinue. This right is given to him because there is an interference with his immediate right of possession. In fact if you, even as the true owner, took the book without John’s consent during the period you would be liable in detinue as well. This is because you, as owner, do not have the immediate right to possession. You have created an arrangement whereby you have given that right to the other person.

Conversion

Conversion (or trover) is the action that is taken in cases where there is total destruction of the goods. Essentially the action for conversion is an allegation that a person is dealing with a chattel in a way that is inconsistent with the immediate possession of a person who has a proprietary right in the chattel.

Again, interference* with a right of possession, not ownership alone, is the crucial factor to bring an action in conversion. The person who takes the action may be either:

• a person who was in actual possession of the goods; or
• a person who has an immediate right to possession of the goods.

Note that some owners do not have an immediate right to possession of goods and therefore might not be able to bring an action.

There are many instances of conversion. It could involve a person wrongfully consuming the goods of another without lawful authority, because that person is dealing with those goods in a way that is inconsistent with the rights of the other person. Or it could involve someone, without lawful authority, removing the goods with the intention of permanently depriving the possessor of the possession, use or enjoyment of them. It might even involve a person who has charge of the delivery of items making a wrongful delivery of them to someone else. Another case is where someone makes a wrongful use of goods of another with an intention to permanently deprive them of the goods.

Examples of conversion

The following are some more specific examples of conversion.

You are a supplier of corn. You give your corn to a carrier to deliver to your normal milling company. The carrier intentionally delivers it to the wrong milling company. The milling company mixes it with the corn of other growers and proceeds to grind it. Both the carrier and the milling company are liable to you in conversion.

You own a car. You lend it to a friend for one year. In the meantime you mortgage it to a finance company to secure a loan repayment. You default on the loan repayment and the company writes to you and tells you that it exercises its right to take possession of the car, although it hasn’t actually done so yet. Your friend returns the car to you, not knowing of the claim of the finance company. Your friend has not committed conversion, because without the knowledge of the claim, she had no intention to deprive the finance company of possession. However, if she knew of the claims of the finance company, then she has committed conversion against it.

You lend a stereo to a friend. The friend, without your consent, pledges the stereo to a pawnbroker to raise some money for his needs. The friend has committed conversion of the goods.

A person walking down the street finds some goods that appear to have been lost. She takes them to the nearest corner store and asks the storeowner to keep them while she (the finder) makes some enquiries. After making unsuccessful enquiries, she discovers that the storeowner has given the goods away to a third party. The storeowner has committed conversion against the finder of the goods—it was the finder who had actual possession of the goods.

You leave your furniture with an acquaintance for safekeeping while you look for a new house. You come back two months later and your acquaintance tells you that your furniture was taking up valuable space in his house, so he sold the goods to someone else. He has committed a conversion because he wrongfully disposed of the title to the goods and, of course, such action is inconsistent with your right to possession.

Note that in all cases of conversion it must be proved that a person intended to deprive the other party of dominion over the goods. The wrongdoing must be intentional, not careless or accidental. This feature distinguishes conversion from trespass to chattels. There might be cases where a person takes goods without consent unintentionally. Think about a case where someone takes a car for a joyride. Is that a case of trespass or a case of conversion? Such a case might fall into the area of trespass to chattels, or conversion—as past cases have shown.

Study task 2.1

Consider the basic elements of the tort of conversion and try to construct some facts which would constitute this tort. The "facts" do not have to be "true". Your main aim should be to use your imagination, which is an essential tool in legal problem solving.

 Reading

Jones, Textbook on Torts, chapter 1.

We have specifically asked you to read this chapter after you have completed studying this unit. We hope that your study of the unit will make it easier to grasp the more comprehensive detail in the reading.

 Study task 2.2

Now return to your learning objectives and consider whether you have achieved them satisfactorily.

If not, you should return to any sections that are not completely clear to you before moving on to the next unit.

Key terms

Make sure that you understand each of the terms below. If you do not know the meaning of a term, read the relevant section of the unit again or consult a legal dictionary.
Assault Bailee for reward Battery Conversion Detinue Dominium Ejectment Intangible property Intention Interference Lesser interests Ownership	Personal property Possession Possessor Property Right to possession Trespass Trespass to chattels Trespass to land Trespass to property Trespass to the person Trove

Note from Reading 11.4

·         the basis on which liability was attributed

·         the concept of an occupier

·         the variations among the different classes of persons to whom an occupier owed duties

·         the different types of duties involved in each case

Hints for selected study tasks

For these study tasks you will find sufficient guidance in the study materials, textbook or cases to which you are directed.

Note from Reading 11.1

·         how the court rejected the old position

·         Do you still believe that judges do not make law?

.REVIEW QUESTIONS

1. What elements must be proven in order to establish a cause of action for trespass to land?

2. What factors distinguish conversion from trespass to goods?

3. What is a right of action in detinue and what action is it similar to?

4. What are the three most basic elements in an action in negligence? 

A Brief Overview of Tort Law Paper VI of LLB Part I Punjab University

A Brief Overview of Tort Law

Introduction 

A tort is a civil breach committed against another in which the injured party can sue for damages. In personal injury cases, the injured party will attempt to receive compensation with the represantation of a personal injury lawyer in order to recover from damages incurred. Tort law decides whether a person should be held legally responsible for injury against another, and what type of compensation the injured party is entitled to. There are four elements to tort law: duty, breach of duty, causation, and injury. In order to claim damages, there must be a breach in the duty of the defendant towards the plaintiff, which results in an injury. The three main types of torts are negligence, strict liability (product liability), and intentional torts.

Intentional Interference with a Person

All tortious charges of intentional interference with person/property involve intent, which provides for a civil wrong, knowingly committed by the offender.  This contrasts with torts of negligence, which results from lack of concern or responsibility on behalf of the offender.These damages are dealt with through civil litigation.

Defenses to Intentional Interference with Persons

When a plaintiff accuses a defendant of an intentional tort, it is the defendant's responsibility to identify any justifications for his actions that may excuse him from liability. In tort law, there are several privileges that a defendant may apprehend, in order to avoid liability. It is up to the courts to determine whether the defendant's privilege excuses him from liability. They need to conclude on whether the defendant had consent, permission by the plaintiff, or whether the plaintiff was defending himself, his property, or another person. If the defendant is able to establish privilege, then it is said that he has not committed a tortious act and will not be held liable.

Negligence: Standard of Conduct

There are certain elements that are required to prove that a defendant acted negligently. There is a specific code of conduct which all people are expected to follow and there is a duty of the public to act in a certain way, which reduces the risk of harm to others. Negligence can only be claimed by an injured plaintiff, whose interests have actually been interfered with. This portrays that a plaintiff must prove his injuries, and prove that they were caused by the defendant. This proximate cause is the link between the defendant's actions and the plaintiff's injuries. There is a statute of limitations in negligence cases, however, there are several rules, such as discovery and continuing negligence, which may excuse a plaintiff from the statute of limitations.

Negligence Proof

The necessity for a negligence case to be tried in a court of law is essential and evident. Tort law, like any other law, is tough to decide upon when an enforcement or violation issue arises, and is furthermore tedious. In negligence cases, a court appoints a jury to make a decision upon a case based on the direct or circumstantial evidence that is available to them. The burden of proof a plaintiff faces in a case, relates to four elements of proof that must exist in order for them to be able to prove that a negligent act not only existed, but the fact that the act by a defendant, led to the injury sustained by the plaintiff. 

Proximate Cause

The name given to the direct cause of an accident, or incident leading to injury, is referred to as 'proximate'. The term proximate has long been known to mean near, or in the vicinity of, not actual. This gives a misconception to the name, as if the cause was nearly opposed to the actual one. Other issues arise deeper within proximate cause, and that is with the scope of liability and its extent. Controversy exists as to where liability should be extended to a defendant, based on their responsibility or duty.

Joint Tortfeasors

Joint tortfeasors, seen as equally liable for the committing of a tort, usually can be combined under one indictment. This is known as a "joinder of defendants". In a case similar to this, one significant reasoning behind its institution besides the commonality that the defendants share in their joint action, is that of "judicial economy." In reference to this term, the court is making the decision that placing all defendants under one sole indictment will be the most appropriate option in terms of efficiency and, ultimately, cost-effectiveness for the judicial system itself. Due to the mounting quantities of cases arising daily, this practice is employed as a worthwhile alternative, especially when an occasion such as that of joint tortfeasors comes about.

Limited Duty

In legal terms, duty is seen as an individuals obligation to act in a manner conducive to the well being of everyone around them, such as the prevention of any "foreseeable injury to a victim." Such a term that best represents this obligation is that of a "duty of care", or even "good Samaritan" to an extent. Duty, itself, serves two other important functions for societal concerns attached to tort law. These include a "general principle" and a "limitation." A general principle provides a precedence for future cases, while limitation sets forth the "boundaries" for which liability may exist for individuals involved in an incident. Actual application of this term comes in the form of its existence at the "abstract level" and "in fact or problem".

Owners & Occupiers

The concerns for areas outside of the premises of a given property deal with the condition of such a property. This is in direct regards to certain factors and attributes such as structural or fixtures on the property that could have an effect on the immediate areas surrounding it. The term trespassing adults refers to any person who has been found to be entering, occupying, or traveling through a property that is owned by someone else, without their permission or consent. Licensees are persons that are given a license, as a form of permission, to enter a property lawfully. Such persons are to enter the property for a reason that does not have to be in the best interest or benefit of the owner. By being granted the license to enter and occupy such property, this individual is exempt from trespassing status, and is completely abiding by the law.

Negligence- Defenses

Contributory negligence is one of the most commonly used negligence defenses. The defendant attempts to deny the plaintiff the right to action, by claiming that the plaintiff's own negligence played a large role in his injuries. In contributory negligence, both parties are guilty of negligence, but the plaintiff is not awarded any damages. The last clear chance rule is an exception to the contributory negligence defense which permits the plaintiff more freedom in taking action against a defendant when the plaintiff is also guilty of negligence. The last clear chance refers to an instance where the defendant had the last clear chance to avoid injuring the plaintiff, but did not take the opportunity. In cases where both the plaintiff and the defendant are both guilty of some degree of negligence, contributory negligence places liability solely on the plaintiff.

Imputed Negligence

Vicarious liability represents a venue in which individuals may be "vicariously" held accountable for the actions of individuals other than themselves. In these cases, the ones held liable are those who have some type of legal claim to the actual individuals at fault. Two such persons may be parents to mischievous children or employers to careless employees, as well as a guardian. In each circumstance, the liable individuals are taking the place of others. A joint enterprise is described as an action, which involves two or more individuals, usually with monetary considerations involved. Additional elements which comprise it include a common goal as well as concurrent rights to take the lead of the operation.

Strict Liability

The basic structure that encompasses that of strict liability is the fact that liability is maintained despite any intent otherwise. In this way, it matters only that the action was performed to its fruition and an eventual injury of another. Certain areas in which safety laws have had to come to the forefront concerning liability include incidents involving product defects. In cases such as these, consumers must only prove that their injuries stemmed directly from the product in question in order to garner an appropriate judgment from the court. The purpose behind such a seemingly rigid form of legislature is to prevent future occurrences from happening by providing precedence to fall in line with.

Compensation Systems

In tort cases, victims often receive compensation, including monetary judgments. However, some judgments include other factors such as: the accused, publicly admitting guilt. In most jurisdictions, the courts have placed limits, or judgment ranges, which depend on specific factors found in the case. In most cases, victims that sustain injuries receive a judgment which maxes out, regardless of how painful and permanent the injury may be. However, the courts can award other judgments, in addition to the one made for specific bodily injury.

Nuisance

In modern tort law there are different types of nuisances: public, private, and absolute. A private nuisance effects one individuals enjoyment of his land, while a public nuisance effects a larger amount of citizens, or the public in general. Absolute nuisances are nuisances for which the defendant is strictly liable. The simple form of nuisance is described as an act which takes away from rights to the use, and enjoyment of land that every owner has.

Products Liability

Products Liability is a field of tort law which concerns the responsibility of the manufacturer or vendor of a product to ensure that products are safe and do not cause injury. Products subjected to liability include all consumer goods, medical devices, commercial/personal vehicles, aircraft and consumable goods such as food and prescription drugs. As it is the duty of a product vendor or manufacturer to produce/supply a product which will not cause harm during normal use, manufacturer/vendors of unsafe products are subject to recovery for damages.

Misrepresentation & Nondisclosure

Misrepresentation and nondisclosure form two fundamental bases for many actions represented under tort law. Any case where false or hidden information plays a significant part, essentially implies a standard of care that reflects the negligence addressed by tort.  

To phrase it more simply, the fact that information has been withheld or misrepresented directly implies a negligent situation. This means that among the various subsections of tort law, cases of misrepresentation and nondisclosure can prove to be the easiest to form a legal consensus of opinion on whether negligence has happened, due to the very idea that the act itself is a negligent action. 

Misrepresentation and nondisclosure can take many forms, but generally they refer to an act or service. they are usually rendered for compensation that do not fulfill their terms of promise, either because they misrepresent their ability to perform, or fail to disclose elements that prevent adequate performance (like a unknown side effect for a product, or a conflict of interest in a case of service).  

There are many remedies one may seek when a case of misrepresentation can be seen to have occurred, though the extent to which they fall under tort law or other forms of legal action are highly dependent on the specific legal system, as well as the nature of the misrepresentation.  In nearly all cases, there is an obligation on the provider of a product or service to provide information either by law, or by request, so as to adhere to all legal standards of accurate representation.

Defamation

The term defamation refers to an abusive attack on a person's character or to make false claims against someone in order to damage their good name. There are two forms of defamation that can be used: libel and slander. An unreasonable person may abuse the right of privilege in order to commit defamation against another person. The right of privilege (or "qualified privilege")  being that a person has a right to make statements during the trial process. This privilege often protects against an unreasonable person who wishes to make defamation statements.     

Misuse of Legal Procedure

Misuse of Legal Procedure is a series of torts that involve the corrupt or undue filing of litigation for unlawful reasons. Public right of access to courts is granted on good faith that claimants will act with probable cause and honesty. Conversely, when a plaintiff in a lawsuit is found to have initiated legal action for purposes of deliberate harassment or inconvenience of the defendant, or when the court terminates the suit in favor of the defense, the defense may seek damage compensation for losses incurred in the legal process. These losses may be qualified under charges of Malicious Prosecution, Wrongful Civil Proceedings or Abuse of Process. 

Domestic Relations 

Domestic Relations is an evolving area of Tort Law which deals with a family's inner workings. The evolution of Domestic Relations Tort has not only shaped the way that family's may collect for damages or interference to the family unit itself resulting from tortious conduct; it has shaped the way husbands, wives, children and legal guardians are viewed as legal entities. Originally, under common law, children and wives were treated as chattels and functioned under a man's proprietary rights. In the 1900's, several advances in Family Law provided for the legal rights of women and children to act as distinct legal entities from their husbands/fathers. 

Survival & Wrongful Death

Survival and Wrongful Death are tort claims made after the death of an individual in an at-fault situation. This means that the deceased must be victim of a tort, before death or at the time of death. Survival actions are raised by the executives of the victim's estate, and are continuations of tort actions that the victim would have been entitled to raise in life. Wrongful death claims are made by surviving dependent's for the loss of the decedent's contributions to their lives.

Economic Relations

Torts of Economic Relations are allegations of direct interference with business relationships, agreements, or prospects, which result in quantifiable losses. When suing for Torts of Economic Relations, it is important that the plaintiff be able to prove that the defendant acted intentionally with knowledge of his or her own actions, and that the subsequent actions were injurious to the claimant in the form of economic losses. Torts of Economic Relations normally fall under classifications of Interference with Contractual Relations, Interference with Prospective Advantage or claims of Injurious Falsehood.

Immunities

In tort cases, there are certain intervening factors which allow individuals immunity, from their actions. Immunity implies either, that the person could not understand the risks associated with their actions or that they can not be held liable because they were acting on behalf of the government or other entity. Cases in which individuals are not likely to understand the possible outcomes of their actions, include infant immunity or insanity immunity. 

Infant immunity applies to minors that are too young to grasp the consequences of their actions. In addition, the minor must not have no intent to cause harm to person or property. It can not be claimed that the minor did not understand the consequences of their actions, if they intended the negative consequences that resulted from their actions. Intent can not be present without an understanding of possible outcomes. In cases that involve infant immunity, the parents or guardians of the minor, could be held liable for their actions, regardless of the minors understanding of the possible outcomes of those actions.

Insanity immunity can be utilized as a defense in cases where a person is deemed insane, or mentally incapable of understanding the possible outcomes of an action. In cases where insanity immunity is a factor, the caregiver of the person that acted in manner which caused a negative outcome, could be held liable in the same manner that a parent or guardian could be liable for a minor. In either case, the actor and those responsible for the care of the actor, could both be held liable for the action.