The Law of Tort

Bill, Sally, Felicity and Andrew may be able to commence legal proceedings for defamation. Defamation is 'the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him'1. It is for the claimant to prove, that the statements are defamatory, they refer to the claimant and have been published2.

For a statement to be defamatory it must be untrue, damage the person's reputation3, this coming from Parmiter v Coupland4, and lower the claimant in the estimation of right thinking members of society5, this comes from Sim v Stretch6. However from Byrne v Deane7, the decision as to whether a statement would be defamatory will reflect what a judge believes an ordinary person would understand by the words used8. For the claimant to prove the statement refers to them they must simply show that they are named and other information is included so the identity of the person is clear9.

It will suffice that those who know the claimant believe that statement refers to them10. This comes from Cassidy v Daily Mirror Newspaper Ltd11. For the statement to be published it must be communicated to someone other than the person defamed12 who must hear or read the statement and understand it13. Now we must establish whether any actions for defamation can be brought. When looking at the situation it is clear Bill, Sally and Felicity have grounds to commence legal proceedings.

With regards to Bill, Mary has alleged that he was dismissed from his former employment for embezzling the company's pension fund and served 18 months in prison for this. These allegations, which were printed in the local newspaper, are untrue and have damaged Bill's reputation. His application for a new job has been terminated 'in light of recent news' which will most likely have come from Mary's allegations. It is clear therefore that Bill has been named and people have understood the allegations to be about Bill. It is also clear that the allegations made to Mary's friends, Phil and the readers of the newspaper have been published.

With Sally, Mary has stated she is a whore who has turned a lovely house into a brothel, that men frequently enter the house to have sex with her and that they conduct these sexual acts in front of an un-curtained window. Again these statements have been published in the newspaper. These statements are all untrue and have damaged Sally's reputation. This can be seen through the word 'whore' being spoken in her direction. This shows Sally has been named in the statements with other information for people to understand they referred to Sally meaning the statements have been published and understood.

In Felicity's case, Mary has claimed that she has a reputation as a slapper with syphilis who has not been seen for the last three months due to becoming pregnant and has been sent away until the birth. Mary also claimed the father could be one of half a dozen men. These claims, which have been published in the local newspaper, are untrue and have clearly damaged her reputation. This can be seen through the comments made by Agnes Featherstone. Felicity has been specifically named and identified as Mary's neighbour in the claims which have been understood by others to mean Felicity.

This can be seen through the reactions of residents which proves the claims made to Mary's friends, Phil and the readers of the newspaper have been published and understood. An action for defamation may also be possible to Andrew however the situation differs as some of the allegations made are in part true. Mary has alleged Andrew is a yob with a drugs habit who has often been seen smoking cannabis. She also alleged that she has been subject to a catalogue of abuse and that he has been breaking windows in her greenhouse.

However the only statement which is false is the allegation that he has been breaking the windows therefore he would only be able to commence proceedings for defamation for this statement as Mary could use a defence of justification contained in the Defamation Act 195214 against the other claims This will however have damaged Andrews reputation. This can be seen through the comments made by Agnes Featherstone. Andrew has been named referred to as Mary's neighbour in the claims which have been understood by others to mean Andrew.

This also means that the statements have been published and understood by the recipients. Following this it is clear that Bill. Sally, Felicity and Andrew would all be able to commence legal proceedings for defamation. We must now identify who they can bring these actions against. Defamation can take one of two forms, libel or slander15. Libel is usually written or takes some permanent form, this comes from Monson v Tussauds Ltd16, and is actionable per se which means without proof of damage whereas slander generally takes a non-permanent form for example words or gestures and is non actionable per se17.

Therefore as Mary simply stated in words the allegations, each person can commence proceedings against Mary for slander. As the newspaper published the words in permanent writing, each person can commence proceedings against the newspaper for libel. Question Two Phil may be able to take action under the tort of occupier's liability. Occupier's liability concerns the liability of an occupier of premises for the injury or loss, or damage to property suffered by a claimant while on the occupier's premises18.

Occupier's liability can be found in two statutes19, the Occupiers Liability Act 195720, (OLA 1957), and the Occupiers Liability Act 198421, (OLA 1984), therefore we must first identify which statute applies in relation to Phil. The OLA 195722 is concerned with the duty of care owed to lawful visitors23, whereas the OLA 198424 is concerned with the duty of care owed towards unlawful visitors25. Phil has been invited by Mary onto her land and, following section 1(2) OLA 195726, would be regarded as an invitee thereby making him a lawful visitor meaning the OLA 195727 will apply.

Next we must identify whether Mary was the occupier of the land when Phil was injured. Following Wheat v E Lacon & Co Ltd28 an occupier is someone who has control over the premises29. The test for identifying an occupier is whether they have a certain degree of control over the premises to be expected to take responsibility for it, which puts them under a duty of care towards those who come lawfully onto the premises30. There is no need for a proprietary interest or possession of the land, all that is required is sufficient control of the premises at the time the injury occurred31.

Mary has sole control over her garden making her the occupier. Now we must identify whether Mary's garden would be regarded as premises. Under section 1(3) OLA 195732, premises is any fixed or moveable structure33 which clearly includes Mary's garden. Next we must establish whether Mary owed Phil a duty of care. Under section 2(1) OLA 195734, 'an occupier of premises owes a common duty of care to all his visitors'35. This common duty, as outlined in section 2(2) OLA 195736, is 'a duty to take such care as is reasonable to see that the visitor will be reasonably safe using the premises for the purpose for which he is permitted to be there'37.

Therefore Mary should have made Phil reasonably safe while on her premises38, obviously she has not as Phil has broken his ankle. This duty of care only extends to risks which are reasonably foreseeable39. A risk of injury to Phil would have been reasonably foreseeable; Phil was there to take photographs which require movement on his part making it foreseeable that Phil could injure himself on a pond full of rubble and not clearly visible due to overgrown weeds.

This duty only applies if the visitor is using the premises for the purpose for which they have been invited40, this coming from Tomlinson v Congleton District Council41. Here the purpose of Phil's visit was to take photographs which is what he was doing when the injury occurred. It is clear therefore that Mary owed Phil a duty of care. Mary may argue under section 2(3)(b) OLA 195742, that she does not owe a duty of care as Phil was exercising his calling and should have guarded against potential risks of injuring himself43.

Phil would have been aware that he would have to move around the garden to take photographs and should have taken more care. However this defence would only be sufficient if the normal safeguards associated with the job would have been sufficient to avert the loss or injury44 this comes from Salmon v Seafarers Restaurant Ltd45. Here the normal safeguards associated with photography would not have been sufficient to prevent the injuries Phil has sustained as the pond was concealed. It is clear Mary has breached her duty of care and failed to keep Phil safe for the purpose of his visit46 as Phil has broken his ankle.

Finally we must identify whether Mary can avoid her duty of care. This could be achieved in 3 ways, firstly warnings. This is any kind of notice given by the occupier to inform the visitor of the danger, enabling them to take reasonable care for their own safety47, this coming from section 2(4)(a) OLA 195748. However Mary has not given any warning about the pond meaning she could not use this defence. Secondly, section 2(1) OLA 195749 states 'an occupier can extend, restrict, modify or exclude his duty of care to any visitor by agreement or otherwise'50.

This means a duty of care can be excluded by means of a contract term or by a notice communicated to the visitor51. Mary has not 'by agreement or otherwise' excluded her liability for injuries or damage and so could not use this defence. Finally consent which is also known as Volenti non fit injuria52. This can be found in section 2(5) OLA 195753 and means that where the claimant knew of the risk but took it anyway, there can be no liability on the occupiers' behalf. This will only apply if the risk is fully understood54 and accepted by the visitor55.

This comes from White v Blackmore56 and Simms v Leigh RFC Ltd57. Phil is not aware of the risk and cannot willingly accept it. Mary therefore cannot avoid her duty of care by using this defence. Thus Phil would be able to commence legal proceedings against Mary under the tort of occupier's liability for the injuries he has sustained. Question three Bobby may be able to take action under the tort of occupier's liability for his injuries. Occupier's liability concerns the liability of an occupier of premises for any injury, loss or damage to property suffered by the claimant while on the occupier's premises58.

Occupier's liability can be found in two statutes, the Occupiers liability Act 195759, (OLA 1957), and the Occupier's Liability Act 198460, (OLA 1984), therefore we must first establish which act will apply in relation to Bobby. The OLA 195761 is concerned with the duty of care owed to lawful visitors62 whereas the OLA 198463 is concerned with the duty of care owed to unlawful visitors64. As Bobby has not been invited onto the land he is as an unlawful visitor meaning the OLA 198465 will apply.

Next we must identify whether Mary was the occupier of premises when the injury occurred. As already established and following the case of Wheat v E Lacon & Co Ltd66 Mary would be regarded as the occupier of her garden which would also be regarded as premises. The next task is to establish whether Mary owes Bobby a duty of care. Under section 1(1)(a) OLA 198467 a duty of care applies in relation to injuries sustained on the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them68.

Bobby's injuries have occurred due to the state of the premises; nail traps were concealed in the garden therefore putting Mary under a duty of care. However a duty of care will only apply if three criteria are fulfilled69. Under section 1(3) OLA 198470, the occupier must be aware of the danger or have reasonable grounds to believe it exists; they must know or have reasonable grounds to believe the trespasser is in the vicinity of the danger and the risk of danger should be one which the occupier may reasonably be expected to offer some protection71.

Mary is aware of the danger as she concealed the nail traps in the lawn. She was also aware Bobby has previously entered her premises unlawfully and so would be aware that anyone trespassing would be in the vicinity of danger and clearly the potential risk is such that Mary would be reasonably expected to offer some protection. Under section 1(4) OLA 198472 the duty is to take such care as is reasonable to prevent injury to the non visitor by reason of the danger concerned73.

Mary has not taken any precautions to prevent the injury from the nail traps meaning Mary has breached her duty of care towards Bobby. This can be illustrated in Tomlinson v Congleton Borough Council74. Finally we must identify whether Mary can avoid her liability. There are two ways to do this, warnings and consent or volenti non fir injuria75. Firstly under section 1(5) OLA 198476, an occupier may avoid liability by taking steps that are reasonable77 to make the unlawful visitor aware of the danger.

This may be achieved by the use of warnings discouraging people to enter78. However this could only be used in relation to adult trespassers79, with a child more warnings are required80. As Bobby is a child the normal warnings would not be sufficient. However Mary has not given any warnings meaning she would not be able to avoid liability with this defence. The second defence of consent also known as volenti non fit injuria which, under section 1(6) OLA 198481, means no duty is owed to anyone to risks willingly accepted by that person82.

The claimant must appreciate the nature and degree of the risk not merely be aware of its existence83. This can be illustrated by Ratcliffe v McConnell84. However Bobby is not aware of the risk and so cannot willingly accept the risk making this defence unsuccessful. Bobby would therefore be able to take legal action against Mary under the tort of occupier's liability for his injuries.