INJURIES TO SPECIFIC INTERESTS - created from Mind Map

A. DELICTS AGAINST THE PERSON (1) ASSAULT (2) HARASSMENT (3) WRONGFUL DEPRIVATION OF LIBERTY A wrongful physical act directed against another with the intention of causing affront, insult or harm. (Bell Principles, § 2032) *Ashley v Chief Constable of Sussex [2008] UKHL = Officer shot and wounded a man without warning. He thought the deceased had been in possession of a firearm. The incident took place in a dawn raid (took place in the course of the officers employment) Legal question of whether the [force would be vicariously liable]= the man jumped out of bed. The officer fired because he thought the man was armed (even as he had no clothes on) HELD= officer acquitted of a criminal charge of manslaughter – On this case, he was given the benefit of the doubt *However, a civil charge was brought (to defeat ‘self-defence’) – In civil proceedings the belief had to be reasonably held, that he reasonably believed the other man was armed. The onus of proof was less than in criminal law. Civil claim for damages Collins v Wilcock [1984] = Police officers see woman on street with a known prostitute of the area. They jumped to the conclusion that she was also a prostitute. Police officer then grabbed her arm to pull her. HELD= this was an assault. This was a hostile act by the police officer. Woman was not a prostitute Wilkinson v Downton [1897] ** Scottish courts have cited this case with approval. Facts: Defendant joked to man’s wife that her husband had had both legs broken. Lady was so shocked by this that she took to bed for weeks and was unwell because if it, even though it was a joke. HELD= Physical injury had been triggered by this joke. Revill v Newberry [1996] Landlord was fed up when vandals went to trash his property. He shot at people in desperation, but this was held to be disproportionate. Psychiatric harm has proven to be a problem category *Sidaway v Board of Governors of Bethlem Royal Hospital [1985] =Sidaway needed a surgical procedure, which carried with it a small risk of damage to the nerve route (not told about the spinal cord risk). Unfortunately, this happened after the operation. There was a Risk of less than 1% but she argued, that she had incomplete information in relation to this. HELD: The doctor had to withhold information that was reasonable in the circumstances. It was the consensus of the medical profession, that where there was a risk of less that 1% that information did not need to be disclosed. She had not been impugned and the claim against the doctor failed. (Operation to relieve pain in neck and shoulders caused damage to spinal cord. Patient had been advised of risk of damage to nerve root, but not to spinal cord. Should she have been more fully informed? Held: doctor should inform patient about risks which a responsible body of medical opinion would think it proper to disclose. Observed: patient's consent is not vitiated by doctor's failure to give sufficient information. Basis of liability is failure of duty of care towards patient rather than assault.) FOLLOWED IN: Scots cases of Moyes v Lothian Health Board 1990 (No duty to disclose risk assessed at less than 1%); Smith v Lothian University Hospitals NHS Trust 2007 Courts have shifted in the standard of care. English case of Bolitho v City and Hackney Health Authority [1998] The court must determine the practice. Lord Browne-Wilkinson conduct of reasonable doctor required to be “responsible, reasonable, and respectable” – to have a “logical basis”. Chester v Afshar= Chester suffered from back pain. She needed to have disks from her back removed. There was a risk of 1% to 2% that could lead to nerve damage. Afshar did not tell Miss Chester about that. She suffered that adverse consequence. He performed the operation without negligence. The problem was that Miss Chester said in court she would have carried on with the operation anyway. Even after further research. The “But for test” of causation was (blown out the water, since her claim could not succeed. In other words----But for not mentioning the risk, she would have still had the operation) The risk had not increased by the defective advice. >Material risk (not satisfied) Nevertheless, on this occasion it was held that Court would allow a modest departure from the rules of causation. It was important on policy grounds, to give a patient a right to choose for herself. Court endorsed this narrow departure from causation. ***Anomaly in the rules of causation (no Protection from Harassment Act 1997, s 8 “S 8— Harassment” (1) Every individual has a right to be free from harassment + person must not pursue a conduct which amounts to harassment of another (a) is intended to cause “the person alarm or distress” (s 8(3)) e.gg • Phone calls, letters, and loitering beside the pursuer’s home McGuire v Kidston 2002 SLT • Bullying in the work place Robertson v Scottish Ministers 2007 CSOH • Pestering customers with unwarranted gas bills Ferguson v British Gas Trading Ltd [2010] Majrowski v Guy’s & St Thomas’s [2007] Gay man, suffered. Claimed he was being harassed.Employer was held to be vicariously liable (sufficiently close connection)Baroness Hale [66] “All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress…But conduct might be harassment even if no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and genuinely offensive and unacceptable behaviour.” Robertson v Scottish Ministers [2007] CSOH Similar case (ECHR article 5) Stair, Institutions, 1.2.5 Liberty is “a most precious right, yet it is not absolute”. Act of the Parliament of Scotland of 1701 “For preventing wrongous Imprisonments and against undue delayes in tryals” Arrest may be: A. with warrant; B. without warrant but justifiable in terms of common law or statute; C. not justifiable in these terms *Henderson v Chief Constable, Fife Police 1988=The pursuer was a health board worker. Workers were interfering with hospital activities during a protest. The police came along and arrested them. They were taken to the police station, cautioned and charged. Mr johns was handcuffed – Miss Henderson though was asked to remove her bra. Her action for wrongful detention however failed. ***Article 5, hasn’t been a game changer here. Not a huge change. *Henderson v Chief Constable, Fife Police Case about lady in underwear. It was held it was reasonable in the interest of hospital business to remove this person. Claim for damages (must meet the test the they action was not justified.) If is not justified on common law or statute, there is prima facie a case for damages Wrongful arrest Downie v Chief Constable, Strathclyde Police 1998 =Police came to house looking for a check fraudster. Suspect was not in house, but police charged Downie after he ran eventhough he wasn’t involved HELD = No public interest for someone who was the wrong man. Awarded 15.000 pounds There is nor requirement to prove malice where there is no justification for the arrest.

B. CONFIDENTIALITY AND PRIVACY (1) Breach of confidence (2) Territorial privacy (3) Personal privacy • Confidentiality – restraining others from divulging truthful information • Article 8(1): Everyone has the right to respect for his private and family life, his home and his correspondence. • Article 10(1): Everyone has the right to freedom of expression. CONFIDENTIAL INFO Coco v A N Clark (Engineers) The information Must have the necessary quality of confidence; + MUST have been imparted in circumstances importing an obligation of confidence; + MUSThave been used in a way that was not authorised. Campbell v MGN per Lord Nicholls at para 31 “In general photographs of people contain more information than textual description. That is why they are more vivid. That is why they are worth a thousand words.” Campbell case: photographs about Naomi Campbell, picture by a photographer coming out of a narcotics anonymous meeting Held: privacy was owed. Baroness Hale at para 149 “intimate details of a fashion model's private life.” Information gained by former members of the security services. Particular sensitive area Attorney General v Guardian Newspapers Ltd (No.2) [1990] Former employee of MI5 attempted to publish his memoirs **** i.e. MI5 had bugged Downing street when Macmillan was PM. [Spycatcher] *** This information became public. Attorney general wanted an injunction against the book. HELD: The contents were already known, and out there. Also on grounds of public interest and freedom of information the request for interdict was denied. Volkswagen v Garcia [2013] Prevention of disclosing how to unlock VW vehicles in a research paper****Researchers reversed engineered the chip inside the car immobiliser you can work out how to use it. (VW cars) Company was concerned this might be used by thieves. HELD: This was not information in the public domain. Public interest that if this was published, it would be opened door for car thieves to carry out thefts. Injunction granted against academic paper. *Mosley v News Group Newspapers [2008] Mosley had had relations with dominatrices (it involved group sex and SM) One woman filmed the proceedings, and got a fee from newspaper. Mosley has an important figure in wolrd of racing. HELD= Damages of 60.000 pounds, his right to privacy. Consensual sexual relationship. All this was off limits if it was between consenting adults. Marital or extra marital- this information is protected. Private correspondence/diaries HRH Prince of Wales v Associated Newspapers Ltd [2008] Prince Charles had kept a journal, about when he travelled in China. One friend leaked it to newspapers. HELD: This is confidential, and should not be broadcasted.

C. DEFAMATION TYPES DEFENCES • Defamation – restraining others from telling lies Interpretation of defamatory imputations Pursuer must prove that: • the defender made the imputation in question; • the imputation referred to, or was capable of being understood as referring to, the pursuer; and • the imputation conveyed a defamatory meaning. Lewis v Daily Telegraph Limited [1964] Lord Reid “what the ordinary man, not avid for scandal, would read into the words complained of” Objective standard Norman v Future Publishing Singer sued a magazine (she was a large lady) the magazine had reported an incident when she got stuck in doors. Singer denied that the whole thing had taken place. She argued about the innuendo “Honey I aint got no sideways” this implied she was ungrammatical. She was unsuccessful, CA found that article gave mention of her successful career and was very complementary. It wasn’t holding up to ridicule. Legal persons and natural persons can sue Jameel v Wall Street Journal Europe [2007] HL accepted that you can sue where there is an impact in your commercial reputation. Even if you can’t quantify your trading losses (a) Veritas (f) Qualified privilege Defence of truth (presumption) – that presumption is rebuttable the defender can rebut it, using this defence of veritas [it operates on the balance of probabilities] This defence must meet the sting of the allegation. Sarwar v News Group Newspapers 1999 --Successful candidate in a parliamentary election. Story that he paid to make it easier to win. The paper was set with proving that money had changed hands as an inducement to bribe. [Defence must meet the sting of the original defamation] Malice need not be proved by the pursuer Reynolds v Times Newspapers [2001]. Reynolds sued on grounds that the article defamed his role in Irish parliament. HELD: As per lord Nichols –were all these factor in the balance? “1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. 7. Whether comment was sought from the plaintiff. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story.9. The tone of the article. A newspaper can raise queries or call for an investigation. 10. The circumstances of the publication, including the timing.” Jameel v Wall Street Journal Europe [2007]- This case followes Reynolds case and condensed criteria (i) whether the subject matter of the article was a matter of public interest; (ii) whether the inclusion of the defamatory statement was justifiable; and (iii) whether the steps taken to gather and publish the information were responsible and fair. Idea of responsible journalism

D. NUISANCE TYPE OF HARM FIRST TEST: CULPA SECOND TEST: GRAVITY OF HARM DEFENCES (i) NO PHYSICAL DAMAGE (ii) PHYSICAL DAMAGE *Webster v Ld Advocate 1985 [Leading Scot cases] Pursuer was one of the inhabitants of Ramsey garden. She sued the organisers of the annual Edinburgh Tattoo (argued the noise was very loud, and the preparation for sittings was a nuisance) Held: Court did not agree that the Tattoo constituted the nuisance, but agreed that the sound of putting up the metal structure so the hammering over the summer months. (In principle constituted a material invasion of her rights) this was therefore a nuisance [organisers were given an ultimatum to reduce noise levels] Globe (Aberdeen) v North of Scotland Water Authority 2000 In principle if your neighbour makes the local environment messy and uninviting, there is nuisance, if it causes loss of business. (In this case there was work being carried in sewers and path outside pursuer’s pub had been made muddy and impassable) This was actionable as a nuisance Rules for recovering economic loss (in certain cases this might be available under a claim for nuisance) Disturbance causing loss of business? *Kennedy v Glenbelle 1996 SC (leading modern Scots case) = Defenders were the proprietors of a basement flat in Glasgow. After Consultation with structural engineers, they removed sections of a load bearing wall – there was structural damage (cracking for flats above) Upper floor proprietors sued Noxious fumes and vapours: *Watt v Jamieson 1954 SC 56 (a) Damages for Fault or culpa must be proved. Strict liability does not apply in nuisance. Strict liability = Pursuer does not have to prove that the defendant was at fault, but the conduct was negligent. All the pursuer has to prove is that the defendant caused harm. In Scotland culpa must be proved in all cases RHM Bakeries v Strathclyde Regional Council 1985(HL) Lord Fraser, no possibly of strict liability in this contest- You couldn’t just say the sewer had collapsed and the council were therefore liable. No, you had to set a case in which the defendants were at fault. (You have to deal with the issue of fault) The fault requirement Lord President Hope in Kennedy v Glenbelle Ltd. “The essential requirement is that fault or culpa must be established. That may be done by demonstrating negligence + action was reckless + conduct gave rise to a special risk of abnormal damage How the pursuer establishes that the nuisance was sufficiently severe- If physical damage has been caused, this test does not require lengthy consideration. It has more significance when what is alleged is interference with comfortable enjoyment of property. The plus quam tolerabile test *Watt v Jamieson 1954 SC Lord Cooper at p 58 “The balance in all cases has to be held between the freedom of a proprietor to use his property as he pleases and the duty on a proprietor not to inflict material loss or inconvenience on adjoining proprietors (vi) ECHR, Article 8? *Marcic v Thames Water Utilities [2004] (I) STATUTORY DEFENCES (II) VOLENTI NOT FIT INJURIA “The general principles are that where the nuisance is an inevitable consequence of the carrying out in a particular place or within particular limits of operations authorised by statute to be carried out there, then there is no liability at law for the nuisance, which is taken to be impliedly permitted by the statute.” (Lord Keith in Rae v Burgh of Musselburgh 1974 ) However, this statement must be weighed against Human Rights Act, s 6 (unlawful for a public authority to act in a way which is incompatible with a Convention right). No defence that the pursuer knowingly “came” to the nuisance, but valid defence if pursuer indicated that s/he was willing to accept the nuisance, or if pursuer can be proved to have acquiesced in the nuisance in such a way as to imply consent.

INJURIES TO SPECIFIC INTERESTS