Tort is an area of civil law. Tort is derived from the French word ‘tort’ meaning ‘wrong’. Tort therefore deals with civil wrongs. If someone has broken the law against you but such a breach does not amount to a crime then the person has committed a tort against you. Civil wrong and a tort mean the same thing. This can also be called tortious malfeasance.
If someone has committed trespass this is probably a tort. It is usually only a crime if it is organised by a large number of people especially with the intent to damage property. There are exemptions. Some buildings and areas of land are restricted zones such as royal palaces, prisons and military bases. To enter these zones without permission is a crime and not a tort.
If someone pollutes your property this can be a tort. Breaches of contract can be tortious. Stealing intellectual property can be torts.
The pronunciation of tort is almost the same as the word ‘taught’.
Tort overlaps with criminal law. Certain acts can be both crimes and torts. Usually this wrongdoing can followed up only one way. If the police mistreat a suspect the suspect may seek to sue the police in tort or to use the criminal law against the police. The person who feels he has been wronged by the police cannot use both avenues against the police. It must be one or other.
People often go for the tortious route and not the criminal route. This is because tort is an area of civil law and therefore the standard of proof is on the balance of probabilities. In criminal law it is beyond all reasonable doubt. Therefore it is much easier to prove something in tort because the burden of proof is much lower. Anything over a 50% chance is proven in tort as it is a civil area of law.
To recap in criminal law the standard is beyond all reasonable doubt. In civil law it is on the balance of probabilities.
Ryland v Fletcher is a leading case in tort.
If you have a thing out of control then you are liable for the harm it does. This applies to animals. Animals de ferae naturae (of a wild nature) are presumed to require greater restraint. The same goes for animals not usually domesticated in the British Islands. Tame animals do not need such care.
A thing out of control could be a car. Tort applies to driving.
Whomsoever commits tort is a tortfeasor.
Those who commit torts are tortrious malfeasors.
People have the right to express their beliefs and to report news. People also have the right not to have their reputations besmirched. Plainly these two rights sometimes collide. So which prevails?
Anyone who says something false to:
lower you in the esteem of right thinking people,
to cause you to be shunned or avoided,
to make people believe you are incompetent in your job,
to say that you have committed an imprisonable offence (even if you were not caught for it)
or that you have an communicable disease
has committed defamation against you. Defamation when spoken is slander. Clearly accusing someone of the foregoing would give someone a bad name. However, it is entirely permissible to accuse someone of any of those things provided that you can prove the allegation is true. That last part is vital. If you can PROVE that the accusations are true then you are allowed to make these accusations. As is often the case in law what matters is not the truth it is what you can PROVE.
There is another act of defamation that used to apply only to women. This is pursuant to the Slander of Women Act. Accusing a woman of unchastity is defamatory unless of course you can prove it is true. On the other hand if a man is false accused of fornication or infidelity it is NOT defamation. Even if it is a bogus accusation, even if the person making the accusation can provide no proof, even if the man accused of infidelity can show that he definitely IS faithful then this allegation is still not defamation. Remember spoken statements are usually slander not libel.
If Albert says that Bilal is a useless accountant to Charlie and Albert cannot prove that this accusation is true then Albert has defamed Bilal. However, if Albert can show audits that Bilal messed up then Albert can successfully defend himself against a defamation action launched by Bilal. It is not defamatory to make a statement which is provably accurate.
The elements of defamation are:
a statement of fact,
it is published to a third party,
it not proven true,
it damages the person’s reputation
It is the case that if someone’s reputation is already vile then you can say tell a lie about this person and it is not regarded as libel. That is on the basis that the person has no reputation left to lose. If a man is suffering from a contagious disease, has been struck off as a dentist, has been to prison for a string of violent crimes and is known for his total inattention to personal hygiene then you can calumniate this man by saying he picks his nose. His name is already so bad that it cannot get any worse.
Any defamatory statement that is published to a third party becomes libel. Libel is more serious than defamation. A third party is not the person who made the statement and not the person about whom the statement is made.
Delia says that Edward has hepatitis (which is contagious). Delia writes a statement to this effect and shows it to Felicity. Delia has libeled Edward unless of course she can prove that what she wrote is true. She accused Edward of having a disease that he could pass to others. Delia wrote this statement and by showing it to Felicity she published it. Felicity is a third party as in she is neither Delia (the person making the statement) or Edward (the person about whom the statement is made). Edward then has a test for hepatitis and the result is negative. This means he has a castiron case for libel. On the other hand Edward does not need to do so to win a libel action. The onus is on Delia to prove the truth of her statement. Edward does not have to prove that the statement is bogus.
Publication includes printing something in a newspaper or magazine. Publication can mean putting something on the internet. It includes putting up a poster or writing graffiti. It includes saying it on the radio, on television or on the stage in the theatre. Saying it to someone on the street is defamation and not libel. Broadcasting it on the radio, TV or internet is considered publication even though the words are spoken not written. This is because these things are recorded and therefore permanent.
Slander is said out loud. This excludes saying out loud as part of a theatrical performance. The trouble with slander is that it is often hard to prove what was actually side. Alfred said something nasty about Cecil. Albert said it to Beatrice. Beatrice remembers Alfred accused Cecil of bigamy.
Alfred said that is not true. He claims that he said Cecil had had an extramarital affair. Alfred admits that that claim is false.
Cecil then moves a writ for libel. His libel action is based on Albert telling a falsehood about him in a manner that had a defamatory effect on his good name.
The court cannot decided who is telling the truth. Therefore they have to find in favour of the defendant: Albert.
The media are allowed to report the proceedings of any legislature anywhere in the world. The media has privileged to report statements that would otherwise be libelous so long as the reportage of parliamentary debates is fair. The same goes for court proceedings. This is qualified privilege. The ‘qualified’ bit means there are limits on it. They have to report it accurately and in good faith.
If in Parliament Mr Goodrich says that Miss Horace is a thief then newspapers are allowed to report this so long as they say that Goodrich was saying this in Parliament. They must use his exact words and not exaggerate. The politicians have absolute privilege for such statements. They can say anything in a legislature even if it is unproven. Even if it is proven to be untrue the statement is not libelous even if it has a terrible impact on a person’s reputation.
If Mr Goodrich goes outside Parliament and says the same thing that he said inside Parliament then this is defamation; slanderous remarks – unless he can prove what he said is true. If he repeats the statement he made in Parliament outside on television it is libel – unless of course he prove what he said is true. Even if he simply confirms what he said inside Parliament this is still libelous. This happened in a case in New Zealand.
There is also absolute privilege for lawyers, judges, witnesses and defendants in courts. In the courtroom during the case anything they say is immune from libelous action.
If in court a barrister Miss Indrojit says to the defendant Mr Jarndyce, ”You burgled the house, didn’t you?” the barrister has not committed slander. Miss Indorjit does not need to prove that the accusation is true. If the court finds Jarndyce not guilty then Miss Indrojit is still in the clear. In a courtroom example there is privilege for lawyers, judges and witnesses to say things that would otherwise defamatory. This does not mean that people are permitted to lie in court. Lying under oath in court is a crime called perjury but that is a separate issue to defamation.
Mr Massingberd is a witness in court for the prosecution. He says that the defence witness Miss Coles is lying through her teeth, is HIV positive, shares a bed with rats and is terrible at her job. Even if none of this is proven Miss Coles cannot sue him for libel.
There is absolute privilege for speeches in any legislature or court. There is qualified privilege for the reporting of such statements. Privilege comes from the Latin ”privi leges” meaning ”private laws”. As in there is an instance where the law is unusual – a special law allows an exemption from the normal law whereby such statements would be libelous.
Supposing Mr Kams in the Jamaican Parliament says ”Miss Lambert is a total failure as a dentist” can a British newspaper report that? The answer is yes. So long as the British newspaper reports the statement in good faith then the newspaper can report statements in any legislature anywhere in the world. The reportage must be accurate.
Statements of opinion are protected from defamation – up to a point. Fair comment is allowed so long as media outlets make it clear that they are reporting opinion and not fact. This is why newspapers have sections called ‘comment’ and ‘opinion.’
Libel does not apply to any huge and ill-defined groups of people. ”All politicians are shysters” is not libel because the group is too broad. ”All British people are racist” is not libel. It might be a racist statement in itself but the group is so large that it would be daft to allow all the members of it to sue the person who made the statement.
If you libel an unnamed member of a small group then the whole group can sue you for libel. Supposing someone published a statement saying, ”One of the firemen in the station committed cruelty to animals.” Imagine there are five firemen in the station. All five of the firemen can sue. Even if the person who made the statement against one of the five the other four can all sue. It is true that Alan was cruel to his dog. But Ben, Caesar, Duncan and Egbert all had their reputations harmed. People could have wrongly assumed it was one of those four.
How small does the group have to be? This is unclear.
Libel does not have to be outright. Implication can be libelous. Someone wrote about Lord Grey Gowry, ”he takes something up his nose which is not to be sneezed at.” This hinted at cocaine abuse. This is a crime. Lord Gowry successfully sued for libel.
Lady Sally Bercow heard a rumour that Lord MacAlpine was a paedophile. She then published on the internet, ”Why is Lord MacAlpine’s name trending this morning? Innocent face.”
Lord MacAlpine said that this implied he had committed crimes against children. He sued Lady Sally for libel. His lordship won his case. He had never been found guilty of any crime against children or indeed any crime at all. Therefore there was no proof that he had committed a crime. He claimed that her ladyship had impliedly accused him of abhorrent offences.
HELPING THE POLICE.
Suppose that there is a murder. The police suspect that Omer did it. They can issue a description and photo of him and say he is suspected of such a crime. They will appeal for help in apprehending him. This is NOT libellous. It is no libel to say someone is SUSPECTED of a crime. It is libel to say that someone COMMITTED a crime unless you can prove it.
The police often say they ”would like to speak to” so and so. The media assist the police by publishing such notices. The Attorney General Mr Havers in the early 80s assured Parliament that the media could do so safe in the knowledge no libel action will result from this.
If you say someone commit a crime with your own eyes it would still be libellous to say it. Your testimony is NOT enough to prove the crime.
The media are very careful to say ”it is alleged that Nora robbed the bank”. They do not say she robbed the bank. Alleged.
Even if you say someone is suspected of committing a crime or probably committed a crime this is still defamation. You do not need to say that the person actually committed it.
In reporting trials the media say if the person pleads not guilty. They must also say if the trial is ongoing otherwise it might hint that the person is guilty.
Beware only those who breathe.
The dead cannot initiate a legal action. Nor can this person’s estate do so. Imagine that Mr Mook is dead. Once he is dead a newspaper claimed that he was a rubbish bus driver and he kidnapped people. His children are very hurt by these false statements. Can they take out a libel action against a newspaper for publishing these foul statements? No, they cannot. Only a living person can sue. You are not able to sue on behalf of your deceased relatives or friends.
As soon as someone dies newspapers often publish accusations about the person that they did not dare publish while the person was alive.
If a woman or man starts a libel action and then dies whilst the action is ongoing then the case dies with her or him.
Note that organisations have reputations too. A company or any other organisation can sue for libel. That is only if the organisation AS A WHOLE had its reputation trashed and not just some individuals in it. If you say ‘Ampleforth College is woeful and provides only miseducation. Half its pupils fail their GCSEs’ that would harm the school’s reputation.
If someone says ‘Ryanair gives people food poisoning every day. It does not adhere to safety standards and none of the pilots are qualified’ this would wreck the airline’s name.
WHAT COUNTS AS LIBEL?
It does not have to be an outright accusation. An implication can be enough.
An image rather than words can be libellous.
A fictional character can be libelous if the fictional character can be readily identified with a real person. If I write about Donny Strump and this person clearly alludes to Donald Trump then what I say might be libelous if I say things which assail Trump’s character and cannot be proven to be true.
Henry Gordon Selfridge set up a shop selling clothes. He had the revolutionary idea of customers being able to handle the items. Before that people were served by shop assistants.
Selfridge moved to London. He set up Selfridge’s in the United Kingdom.
Some in London society did not like him. At the theatre an actor bearing an unmistakable physical resemblance to Selfridge appeared on stage. The actor imitated Selfridge’s accent and mannerisms and the character was named Harry Gabriel Selfish. The character on the stage made various statements about himself which were very damaging to the character’s reputation. The character was patently an alias for Selfridge. Selfridge sued for libel and won.
Search engines, social networking sites and the like cannot be sued. They cannot winnow out all potentially libelous statements. They do not create their own material.
Criminal libel is for false accusations that are so lurid and insulting that they might incite violence. This is not the same as incitement of violence as such.
Incitement of violence is saying ”Mr Norris is a disgusting pervert so next time you see him punch him. Do it! I urge you – hit him.”
Oscar Wilde took out a criminal libel suit against the Marquess of Queensberry in 1894. That was because Lord Queensberry had accused Wilde of being a ganymede. In those days that was a felony.
Criminal libel would be making really vicious accusations that might result in crime without actually encouraging people to commit acts of violence.
Criminal libel has probably fallen into abeyance. The word here is probably since the law has not been repealed. The last time a criminal libel action was started was in the 1970s. Because there has been no attempted prosecution for 40 years a court may well find that the relevant law is antique and ought not be enforced. The billionaire businessman Sir James Goldsmith started a criminal libel action against the satirical weekly called Private Eye. He was persuaded to accept a payment and a grovelling apology from Private Eye.
In the 19th century criminal libel was more common. The Irish writer Oscar Wilde found a note pinned up about him in his private members’ club calling him a ”sondomite” – it was a misspelling of sodomite. The Marquess of Queensberry had accused Oscar Wilde of being gay – which was a crime at the time. (The law against homosexual acts was only repealed in 1967 in England and Wales). Wilde ill-advisedly took out a criminal libel action against Lord Queensberry. Lord Queensberry’s barrister was another Irishman named Edward Carson. E H Carson was one of the ablest barristers of his generation. Carson had been at Trinity College, Dublin with Wilde where they had been close. The men fell out over the trial. As the saying went the feud carried on ”with all the added bitterness of an old friend.”
At first the very witty Wilde rang rings around Carson whose prosecution seemed to be plodding.
Carson: ”Did you kiss the boy?”
Wilde: ‘‘Oh no I did not, he was very ugly.”
Carson: ”That means if he had not been ugly you would have kissed him.”
Carson’s approach was as different from Wilde as may be imagined. Carson was unshowy, slow, methodical and deadly.
The trouble was that the accusation was true and Lord Queensberry could prove it. Many witnesses testified that Wilde was actively gay. Wilde’s action collapsed. He was later prosecuted for homosexual acts and sent to Reading Gaol to serve his sentence with hard labour. He was solitary confinement.
ISSUING A WRIT.
If someone feels libelled he or she can issue a writ. He or she has two years in which to do this from the time the alleged libel was published.
If the alleged libel was published on 1 January 2000 then 1 January 2002 was the last date to issue a writ. If however the libel was re-published on 2 January 2002 that extends the period for issuance of the writ to 2 January 2004. A writ is a document which states that a civil legal action has been launched.
A claimant does not have to taken action against the original publisher. If the Times publishes a libel and then the BBC repeats it the claimant could choose to take action against the BBC and not against the Times.
The party that has committed the alleged libel can offer accord and satisfaction. This can be to apologise in a public manner and withdraw the statement. The party would probably offer to pay a sum in damages. The claimant (person claiming to have been libeled) can accept this and end the matter.
Accord and satisfaction is a quick and cheap way for the parties to sort it out without going to court. It is a low risk option.
The claimant is also free to reject the offer of accord and satisfaction. The case proceeds to court. Perhaps the proposed retraction was not was not going to be prominent enough. The apology was insufficiently abject. Further, perhaps the amount of money offered in damages was niggardly in view of the severity of the libelous statement.
The court might find that the statement was libelous but the accord and satisfaction offered was sufficient. The court would therefore rule in favour of the defendant. On the other hand the court might say there was a libel and the accord and satisfaction was not enough so the court rules in favour of the claimant.
If the court decides there was no libel then the defendant wins. If the defendant has already offered accord and satisfaction this is unlikely. This is because the defendant has already admitted saying something harmful to the claimant’s reputation that is unproveable. If the statement was true and could be proven to be true the defendant would not have offered accord and satisfaction.
If the claimant loses then he has to pay the legals costs of the defence. This could be hundreds of thousands of the pounds. This can bankrupt people.
Count Tolstoy lost a libel action against a Tory peer. Tolstoy went bankrupt in paying the claimant damages.
There is no legal aid for defamation cases. This is a rich man’s game. Defamation is not considered a priority. You are allowed to represent yourself in court an adult of sound mind.
London is the defamation capital of the world. People say the UK’s libel laws are too broad. The British libel laws arguably restrict freedom of expression overmuch.
GOING UP TO THE LINE
The media do not like to be overly circumspect. Then they would miss out on many juicy stories. They sometimes stray over the line of what is safe to print. They do so because they take calculated risks. They assume that such and such a person will not take out a libel action against them.
There is no legal aid for libel. Libel is very costly. It is the only civil wrong where there is a jury in England and Wales. Libel can be decided by a judge.
In a libel case the judge sees if the parties agree to a jury trial or a trial with a judge sitting alone. If the parties cannot agree then the judge will decide to sit alone or have a jury.
If libel is proven the person or party that committed libel must retract the statement and apologise. Damages can be awarded. These can be derisory like one pound or they can be millions. It is as the court deems fit.
The costs incurred can be in the millions. If the claimant wins and is awarded costs this can bankrupt the defendant. The same can work the other way around if the defendant wins.
It is not worth suing people of straw – as in those with little money. This is because even if you win that person cannot pay you damages and costs.
Tort is all about what one is liable for.
You might owe someone a legal duty. If this legal duty is breached and harm results from it then you are liable in tort for the damage caused.
At the fictive Widdlewhop School has to keep its pupils safe. However, it does not have fire alarms and never does fire practices. A fire breaks out and the school is not evacuated in time. One child dies as a result.
If someone commits a tort he is usually primarily liable. I say usually because some people cannot be held responsible for these actions: this is often the case with children or those who are not compos mentis such as the mentally ill.
Vicarious liability is being answerable for the torts of another for whom one is responsible. Parents are sometimes vicariously liable for their children. A vicar is a priest who does work on behalf of another. That is why vicarious means in place of another.
Home Office v Dorset Yacht. Some juvenile delinquents were held at a borstal. They were out for the day under the supervision of guards. The boys ran amock and smashed up a yacht. The owners wanted to sue the guards for being primarily liable for the damage inflicted. The Home Office was vicariously liable for the damage since the Home Office was ultimately in charge of the guards. The young criminals did not have tortious liability.
Doctors, nurses, dentists, paramedics and other medical staff are required to be very careful. They must exercise due diligence in all they do. They must verify that a patient understand the medical procedure and consents to it. In emergency situations this does not apply. There is no time to explain the intended course of treatment. The casualty is often unconscious or in no fit state to contemplate the treatment.
Adults of sound mind are entitled to refuse treatment. Doctors sometimes treat the mentally ill or people of very low intelligence against their will. Children can sometimes be treated against the wishes of their parents if it is a matter of life and death.
However, extreme caution is also harmful. Every operation is a risk. Operating is usually less dangerous than not operating.
If a car crash victim is operated and a surgeon thinks he needs to operate in order to save a patient’s life should the surgeon operate? If the surgeon does not operate the patient might die. However, even if she operates the patient might still die.
Many operations are elective. That means these are not needed to prevent death. Some babies are born with an extra toe. These are usually surgically removed. Such operations are very safe indeed but they are also unnecessary. Doctors must explain to parents the risks associated with the procedure. If the parents, having been told of the attendant risks, decide to go ahead then this is allowed. A nose job is not medically needed. People can have these operations but of course there is some risk.
There is more than one way to skin a cat. There is often more than one way to deal with a medical issue. Doctors can be legally protected whichever option they go for so long as what the doctor did is supported by a reasonable body of professional opinion.
Doctors must not be negligent. Doctors and other medical staff who neglect their duties can be tortiously liable. They will have to pay compensation and be disbarred from the profession. It will be the hospital or medical trust that will have to pay and not the individual physician.
The trouble is doctors then practise defensive medicine. This means doing things for legal and not medical reasons. This problem is very acute in the United States. In the USA doctors are sued for malpractice all the time. Instead of being cautious physicians in the United States tend to be very, very, very cautious. The most minor complaint will be examined in extreme detail. Some of the tests run have risks linked to them. It also makes the cost of medical care prohibitive. This is so doctors can document that they did everything they possibly could to reduce risk and check the patient for the very remote possibility of diseases.