Selected Tort Law Terms

Assault - n. An intentional or reckless act that causes someone to be put in fear of immediate physical harm. Actual physical contact is not necessary to constitute an assault (for example, pointing a gun at someone may constitute an assault), but the word is often loosely used to include both threatening acts and physical violence. Assault is a form of trespass to the person and a crime as well as a tort: an ordinary (or common) assault, as described above, is a summary offence punishable by a fine and/or up to six months' imprisonment. Certain kinds of more serious assault are known as aggravated assaults and carry stricter penalties. Examples of these are assault with intent to resist lawful arrest (two years), assault occasioning actual bodily harm (five years), and assault with intent to rob (life imprisonment).

Auditor - n. A person or firm appointed to examine the books of account and the accounts of a registered company and to report upon them to company members. An auditor's report must state whether or not, in the auditor's opinion, the accounts have been properly prepared and give a true and fair view of the company's financial position. The Companies Acts 1985 and 1989 set out the qualifications an auditor must possess and also certain rights to enable him to fulfil his duty effectively.

Bailment - n. The transfer of the possession of goods by the owner (the bailor) to another (the bailee) for a particular purpose. Examples of bailments are the hiring of goods, the loan of goods, the pledge of goods, and the delivery of goods for carriage, safe custody, or repair. Ownership of the goods remains in the bailor, who has the right to demand their return or direct their disposal at the end of the period (if any) fixed for the bailment or (if no period is fixed) at will. This right will, however, be qualified by any lien the bailee may have over the goods. Bailment exists independently of contract. But if the bailor receives payment for the bailment (a bailment for reward) there is often an express contract setting out the rights and obligations of the parties. A bailment for which the bailor receives no reward (e.g. the loan of a book to a friend) is called a gratuitous bailment.

Battery - n. The intentional or reckless application of physical force to another person. Common battery is a criminal offence (punishable with a fine and/or six months' imprisonment) as well as a tort, even if no actual harm results. The consent of the victim is a defence to common battery. If actual harm does result, however, the consent of the victim will provide a defence only when the injury is inflicted for good reason (e.g. in the course of a sport or medical treatment).

Causation - n. The relationship between an act and the consequences it produces. It is one of the elements that must be proved before an accused can be convicted of a crime in which the effect of the act is part of the definition of the crime (e.g. murder). Usually it is sufficient to prove that the accused had mens rea (intention or recklessness) in relation to the consequences; the burden of proof is on the prosecution. In tort it must be established that the defendant's tortious conduct caused or contributed to the damage to the claimant before the defendant can be found liable for that damage. Sometimes a distinction is made between the effective or immediate cause (causa causans) of the damage and any other cause in the sequence of events leading up to it (causa sine qua non). Simple causation problems are solved by the "but for" test (would the damage have occurred but for the defendant's tort?), but this test is inadequate for cases of concurrent or cumulative causes (e.g. if the acts of two independent tortfeasors would each have been sufficient to produce the damage).
Sometimes a new act or event (novus actus (or nova causa) interveniens) may break the legal chain of causation and relieve the defendant of responsibility. Thus if a house, which was empty because of a nuisance committed by the local authority, is occupied by squatters and damaged, the local authority is not responsible for the damage caused by the squatters. Similarly, if X stabs Y, who almost recovers from the wound but dies because of faulty medical treatment, X will not have "caused" the death. It has been held, however, that if a patient is dying from a wound and doctors switch off a life-support machine because he is clinically dead, the attacker, and not the doctors, "caused" the death. If death results because the victim has some unusual characteristic (e.g. a thin skull) or particular belief (e.g. he refuses a blood transfusion on religious grounds) there is no break in causation and the attacker is still deemed to be the legal cause.

Caveat emptor - [Latin: let the buyer beware] A common-law maxim warning a purchaser that he could not claim that his purchases were defective unless he protected himself by obtaining express guarantees from the vendor. The maxim has been modified by statute: under the Sale of Goods Act 1979 (a consolidating statute), contracts for the sale of goods have implied terms requiring the goods to correspond with their description and any sample and, if they are sold in the course of a business, to be of satisfactory quality and fit for any purpose made known to the seller. Each of these implied terms is a condition of the contract. However, in many commercial contracts the vendors attempt to exempt themselves from liability for breach of these terms. This will usually be valid unless the exclusion is unreasonable or unfair under the law relating to unfair contract terms. These statutory conditions do not apply to sales of land, to which the maxim caveat emptor still applies as far as the condition of the property is concerned. However, a term is normally implied that the vendor must convey a good title to the land, free from encumbrances that were not disclosed to the purchaser before the contract was made.

Citizen's arrest - An arrest by anyone other than a police officer. Such an arrest is lawful.

Compensation - n. Monetary payment to compensate for loss or damage. When someone has committed a criminal offence that caused personal injury, loss, or damage, and he has been convicted for this offence or it was taken into account when sentencing for another offence, the court may make a compensation order requiring the offender to pay compensation to the person suffering the loss (with interest, if need be). Magistrates' courts may make orders in respect of compensation. The court must take into account the offender's means and should avoid making excessively high orders or orders to be paid in long-term instalments. If the offender cannot afford to pay both a fine and compensation, priority should be given to payment of compensation. A compensation order may be made for funeral expenses or bereavement in respect of death resulting from an offence other than a death due to a motor-vehicle accident. Potential claimants and maximum compensation for bereavement are the same as those under the Fatal Accidents Act 1976. An order may only be made in respect of injury, loss, or damage (other than loss suffered by a person's dependants in consequence of his death) due to a motor-vehicle accident if (1) it is for damage to property occurring while it was outside the owner's possession in the case of offences under the Theft Act 1968, or (2) the offender was uninsured to use the vehicle and compensation is not payable under the Motor Insurers' Bureau agreement. A court that does not award compensation must give reasons. Victims of criminal injury may apply for compensation under the Criminal Injuries Compensation Scheme. Under the Theft Act 1968, a restitution order in monetary terms may be made when the stolen goods are no longer in existence; this kind of order is equivalent to a compensation order. Compensation orders may be made in addition to, or instead of, other sentences. A court must order a parent or guardian of an offender under the age of 17 to pay a compensation order on behalf of the offender unless the parent or guardian cannot be found or it would be unreasonable to order him to pay it.
A person who has been wrongfully convicted of a criminal offence may apply to the Home Secretary for compensation, which is awarded upon the assessment of an independent assessor.
An employment tribunal may order an employer to pay compensation to an employee who has been unfairly dismissed. The compensation comprises a basic award of a sum equivalent to the redundancy payment to which a redundant employee would be entitled (with a minimum of £4000 (2006) when dismissal is for trade union activity), and a compensatory award representing the loss that the employee suffers because of the dismissal (the compensatory award is subject to an upper limit of £58,400 (2006)). This will include compensation for the loss of his earnings and other benefits of the former employment, and for the loss of his statutory rights in respect of unfair dismissal and redundancy in the initial period of any new employment he obtains. Additional compensation may be awarded if the employer does not comply with an order by the tribunal to re-employ the employee; the additional award will be between 26 and 52 weeks' pay. Limits on the amount of weekly pay that can be used in these calculations are set by regulations made by the Secretary of State for Work and Pensions and reviewed annually. In 2006, the limit on a week's pay is £290. The tribunal may reduce any compensation by an appropriate proportion when the employee's conduct has contributed to his dismissal or where statutory dismissal procedures or statutory grievance procedures have not been complied with. The employee is under the same duty to mitigate his loss as someone claiming damages in the courts. Thus if he unreasonably refuses an offer of a new job he will not be compensated for his continued unemployment thereafter. If the employee was dismissed for his failure to enter into a closed-shop agreement, following pressure by a trade union for his dismissal, the employer can pass on to the trade union the liability to pay compensation. Compensation may also be awarded by an employment tribunal when there is a finding of sexual or racial discrimination. In such cases the upper limit or financial cap on unfair dismissal damages has been removed, as the European Court of Justice has ruled that the cap is discriminatory and contrary to equal treatment laws. This award can also include an amount for hurt feelings.

Contributory negligence - A person's carelessness for his own safety or interests, which contributes materially to damage suffered by him as a result partly of his own fault and partly of the fault of another person or persons. Thus careless driving, knowingly travelling with a drunken driver, and failure to wear a seat belt are common forms of contributory negligence in highway accidents. The Law Reform (Contributory Negligence) Act 1945 granted a general power to apportion damages. The effect of contributory negligence is to reduce the claimant's damages by an amount that the court thinks just and equitable. The defence is most common in actions for negligence, but can be pleaded in some other torts, e.g. nuisance, Rylands v Fletcher, breach of statutory duty, or under the Animals Act 1971. Contributory negligence may also be a defence to some actions for breach of contract. It is not a defence to conversion or intentional trespass to goods (Torts (Interference with Goods) Act 1977).

Consumer protection - The protection, especially by legal means, of consumers (those who contract otherwise than in the course of a business to obtain goods or services from those who supply them in the course of a business). It is the policy of current legislation to protect consumers against unfair contract terms. In particular they are protected against terms that attempt to exclude or restrict the seller's implied undertakings that he has a right to sell the goods, that the goods conform with either description or sample, and that they are of satisfactory quality and fit for their particular purpose (Unfair Contract Terms Act 1977). EU directive 93/13 renders unfair terms in consumer contracts void; it is implemented in the UK by the Unfair Terms in Consumer Contracts Regulations 1999. The Office of Fair Trading runs a special unfair terms unit, which investigates cases in this field. It also issues special guidance to businesses on unfair terms in particular sectors (for details see www.oft.gov.uk). There is also provision for the banning of unfair consumer trade practices (Fair Trading Act 1973). Consumers (including individual businesspeople) are protected when obtaining credit (Consumer Credit Act 1974) and there is provision for the imposition of standards relating to the safety of goods under the Consumer Protection Act 1987 and the General Product Safety Regulations 1994. There are, in addition, many legislative measures that are product-specific, such as toy safety regulations.

Conversion - n. 1. (in tort) The tort of wrongfully dealing with a person's goods in a way that constitutes a denial of the owner's rights or an assertion of rights inconsistent with the owner's. Wrongfully taking possession of goods, disposing of them, destroying them, or refusing to give them back are acts of conversion. Mere negligence in allowing goods to be lost or destroyed was not conversion at common law, but is a ground of liability under the Torts (Interference with Goods) Act 1977. The claimant in conversion must prove that he had ownership, possession, or the right to immediate possession of the goods at the time of the defendant's wrongful act. Subject to some exceptions, it is no defence that the defendant acted innocently.
2. (in equity) The changing (either actually or fictionally) of one kind of property into another. For example, if land is sold the interest of those entitled to the property changes from an interest in the land to an interest in the money that represents it. Before 1926 (and to a lesser extent thereafter) it was important to know whether a person entitled to property had interests in land or in the proceeds of its sale: to leave the determination of these rights to be decided by the precise moment of a sale could have led to uncertainty and injustice. The doctrine of conversion stated that if there was a duty to convert the property, equity would assume the property to have been converted forthwith: "equity looks on that as done which ought to have been done". This doctrine was abolished with effect from 1 January 1997 by the Trusts of Land and Appointment of Trustees Act 1996.

Damages - pl. n. A sum of money awarded by a court as compensation for a tort or a breach of contract. Damages are usually a lump-sum award. The general principle is that the claimant is entitled to full compensation (restitutio in integrum) for his losses. Substantial damages are given when actual damage has been caused, but nominal damages may be given for breach of contract and for some torts (such as trespass) in which no damage has been caused, in order to vindicate the claimant's rights. Damages may be aggravated by the circumstances of the wrong. In exceptional cases in tort (but never in contract) exemplary damages may be given to punish the defendant's wrongdoing. Damages may be classified as unliquidated or liquidated. Liquidated damages are a sum fixed in advance by the parties to a contract as the amount to be paid in the event of a breach. They are recoverable provided that the sum fixed was a fair pre-estimate of the likely consequences of a breach, but not if they were imposed as a penalty. Unliquidated damages are damages the amount of which is fixed by the court. Damages may also be classified as general and special damages.
The purpose of damages in tort is to put the claimant in the position he would have been in if the tort had not been committed. Recovery is limited by the rules of remoteness of damage (Hadley v Baxendale (1854) LR 9 Exch 341, 156 ER 145). The claimant must take reasonable steps to mitigate his losses and so may be expected to undergo medical treatment for his injuries or to seek alternative employment if his injuries prevent him from doing his former job. Damages may also be reduced for the claimant's contributory negligence. The purpose of damages in contract is to put the claimant in the position he would have been in if the contract had been performed, but, as in the case of damages in tort, recovery is limited by rules relating to remoteness of damage. Again as in the case of torts, the claimant is also under a duty to take all reasonable steps to mitigate his losses and cannot claim compensation for any loss caused by his failure to do this. If, for example, a hotel reservation is cancelled, the hotelier must make all reasonable attempts to relet the room for the period in question or as much of it as possible.
Damages obtained as a result of a cause of action provided by the Human Rights Act 1998 will be provided on the basis of the principles of just satisfaction developed by the European Court of Human Rights.

Defamation - n. The publication of an untrue statement about a person that tends to lower his reputation in the opinion of right-thinking members of the community (Sim v Stratch [1936] 2 ALL ER 1237 (HL)) or to make them shun or avoid him. Defamation is usually in words, but pictures, gestures, and other acts can be defamatory. In English law, a distinction is made between defamation in permanent form and defamation not in permanent form. This distinction is not made in Scotland. The remedies in tort for defamation are damages and injunction.
In English law, the basis of the tort is injury to reputation, so it must be proved that the statement was communicated to someone other than the person defamed. In Scottish law, defamation includes injury to the feelings of the person defamed as well as injury to reputation, so an action can be brought when a statement is communicated only to the person defamed. If the statement is not obviously defamatory, the claimant must show that it would be understood in a defamatory sense. It is not necessary to prove that the defendant intended to refer to the claimant. The test is whether reasonable people would think the statement referred to him, but the defendant may escape liability for unintentional defamation by making an offer of amends. Other defences are justification, fair comment, absolute privilege, and qualified privilege.
All those involved in the publication of a defamatory statement, such as printers, publishers, and broadcasting companies, are liable and every repetition of a defamatory statement is a fresh publication, giving rise to a new cause of action. A mere distributor of a book, newspaper, etc., may have a defence of innocent dissemination if he did not know and had no reason to know of its defamatory contents. The Defamation Act 1996 introduced a summary procedure for claims of less than £10,000 to be heard by a judge alone. However, it did not otherwise change the rule that the jury and not the judge decides on the damages in defamation cases. The limitation period was reduced to one year.

Duty of care - The legal obligation to take reasonable care to avoid causing damage. There is no liability in tort for negligence unless the act or omission that causes damage is a breach of a duty of care owed to the claimant. There is a duty to take care in most situations in which one can reasonably foresee that one's actions may cause physical damage to the person or property of others. The duty is owed to those people likely to be affected by the conduct in question. Thus doctors owe a duty of care to their patients (Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 (QB)) and users of the highway have a duty of care to all other road users (Nettleship v Weston [1971] 2 QB 691). However, there is no general duty to prevent other persons causing damage or to rescue persons or property in danger. Liability for careless words is more limited than liability for careless acts and there is no general duty not to cause economic loss or psychiatric injury. The existence and scope of the duty of care will depend upon all the circumstances of the case and the relationship between the parties. The courts have developed a three tier test to determine whether a duty of care exists (Caparo Industries plc v Dickman [1990] 2 AC 605 (HL)). Most duties of care are the result of judicial decisions; however, some are contained in statutes, such as the Occupier's Liability Act 1957.

Employer's liability - The liability of an employer for breach of his duty to provide for his employees competent fellow-workers, safe equipment, a safe place of work, and a safe system of work, including adequate supervision (Wilson and Clyde Coal Co Ltd v English [1938] AC 57 (HL) 141). This includes a duty not to cause psychiatric injury (Barber v Somerset CC [2004] UKHL 13, [2004] 1 WLR 1089; Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6, [2005] ICR 782). Liability can be in tort for damages for negligence and for breach of statutory duty under statutes providing for safety at work; there are also criminal penalties.

Ex turpi causa non oritur action - [Latin: no action can be based on a disreputable cause] The principle that the courts may refuse to enforce a claim arising out of the claimant's own illegal or immoral conduct or transactions. Hence parties who have knowingly entered into an illegal contract may not be able to enforce it and a person injured by a fellow-criminal while they are jointly committing a serious crime may not be able to sue for damages for the injury.

Injunction - n. A remedy in the form of a court order addressed to a particular person that either prohibits him from doing or continuing to do a certain act (a prohibitory injunction) or orders him to carry out a certain act (a mandatory injunction). The remedy is discretionary and will be granted only if the court considers it just and convenient to do so; it will not be granted if damages would be a sufficient remedy.
Injunctions are often needed urgently. A temporary injunction (an interim injunction) may therefore be granted at a special hearing pending the outcome of the main hearing of the case. If it is granted, the claimant must undertake to compensate the defendant for any damage he has suffered by the grant of the injunction if the defendant is successful in the main action. If judgment is given for the claimant in the main action, a perpetual injunction may be granted. A person who fails to abide by the terms of an injunction may be guilty of contempt of court.

Joint tortfeasors - Two or more people whose wrongful actions in furthering a common design cause a single injury. For example, if two men searching for a gas leak both applied a naked light to a gas pipe and caused an explosion, they are joint tortfeasors. But if a single injury is caused by several people acting without a common design they are not joint, but concurrent tortfeasors. An example of concurrent tortfeasors would be two motorists in separate cars, both driving negligently and causing a collision in which a pedestrian is injured. In both cases, the injured claimant is entitled to sue any or all of the tortfeasors for his whole loss; if he obtains a judgment against one tortfeasor that is not satisfied, he may proceed against the others. A tortfeasor liable for damage may recover contribution from other tortfeasors (whether joint or concurrent) liable for the same damage.

Judicial review - 1. The principal means by which the High Court exercises supervision over public authorities in accordance with the doctrine of ultra vires. The power of the High Court to exercise judicial review is often referred to as its supervisory jurisdiction. The mechanism for seeking judicial review is by making a claim under the procedure provided for in Rule 54 of the Civil Procedure Rules. Claims are made to the Administrative Court, which is part of the High Court. The common law grounds on which judicial review may be granted were defined in the case Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) as illegality, irrationality, and procedural impropriety. In terms of the Human Rights Act 1998, judicial review may also be used to challenge action by public authorities that is incompatible with the European Convention on Human Rights. If the claim for a judicial review is successful, the court may grant a quashing order, mandatory order, prohibiting order, declaration, or injunction; it may also award damages in certain circumstances.
2. In European Union law, the European Court of Justice has a judicial review function provided for under Article 230 of the EC Treaty. In terms of this provision, community acts (i.e. legally binding acts of the community institutions) are challengeable by means of judicial review on the grounds of lack of competence, infringement of an essential procedural requirement, or infringement of the Treaty or any rule of law relating to its application or misuse of powers. Action can be brought by an institution of the EU, a member state, or (in certain limited circumstances) an individual.

Libel - n. A defamatory statement made in permanent form, such as writing, pictures, or film. Radio and television broadcasts, public performance of plays, and statements posted on the Internet are treated as being made in permanent form for the purposes of the law of defamation. A libel is actionable in tort without proof that its publication has caused special damage (actual financial or material loss) to the person defamed. Libel can also be a crime (criminal libel). Proof of publication of the statement to third parties is not necessary in criminal libel and truth is a defence only if the statement was published for the public benefit.

Limitation - n. Statutory rules limiting the time within which civil actions can be brought. Claims in simple contract and tort must normally be brought within six years of the accrual of the cause of action (in the case of contracts, within six years of the date of the breach of contract). Special rules apply to actions in respect of land; to strict liability actions for defective products; to claims for defamation; and to applications for judicial review. If the claim is for damages for personal injury or death caused by negligence, nuisance, or breach of duty the limit is normally three years from the accrual of the cause of action or (if later) from the date when the claimant knew of the relevant circumstances; however, the court has a discretion to extend the limitation period. Most limitation periods are set out in the Limitation Act 1980 (as amended). Expiry of a limitation period normally provides a defendant with a complete procedural defence to a claim. However, time does not run against persons under a disability (children and persons of unsound mind) until the disability ceases.

Malicious falsehood (injurious falsehood) - A false statement, made maliciously, that causes damage to another. The oldest forms of this tort are slander of title and slander of goods, but other false and malicious statements (e.g. that a businessman has ceased to trade) can also give rise to an action in tort. Usually actual damage must be proved. Malicious falsehood can overlap with defamation, but mainly protects property and business interests. More recently this tort has been extended to protect individual economic interests. Cases: Joyce v Sengupta [1993] WLR 337 (CA); Kaye v Robertson [1991] FSR 62 (CA).

Misrepresentation - n. An untrue statement of fact, made by one party to the other in the course of negotiating a contract, that induces the other party to enter into the contract. The person making the misrepresentation is called the representor, and the person to whom it is made is the representee. A false statement of law, opinion, or intention does not constitute a misrepresentation; nor does a statement of fact known by the representee to be untrue. Moreover, unless the representee relies on the statement so that it becomes an inducement (though not necessarily the only inducement) to enter into the contract, it is not a misrepresentation. The remedies for misrepresentation vary according to the degree of culpability of the representor. If he is guilty of fraudulent misrepresentation (i.e. if he did not honestly believe in the truth of his statement, which is not the same as saying that he knew it to be false) the representee may, subject to certain limitations, set the contract aside by rescission and may also sue for damages. If he is guilty of negligent misrepresentation (i.e. if he believed in his statement but had no reasonable grounds for doing so) the representee was formerly entitled only to rescission but may now (under the Misrepresentation Act 1967 or by an action in tort for negligence) also obtain damages. If the representor has committed merely an innocent misrepresentation (one he reasonably believed to be true) the representee is restricted to rescission, subject to the discretion of the court under the 1967 Act to award him damages in lieu. A representee entitled to rescind a contract for misrepresentation may decide instead to affirm it.

Negligence - n. 1. Carelessness amounting to the culpable breach of a duty: failure to do or recognize something that a reasonable person (i.e. an average responsible citizen) would do or recognize, or doing something that a reasonable person would not do. In cases of professional negligence, involving someone with a special skill, that person is expected to show the skill of an average member of his profession (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 (HL)). Negligence may be an element in a few crimes, e.g. careless and inconsiderate driving, and various regulatory offences, which are usually punished by fine. The main examples of serious crimes that may be committed by negligence are sexual offences under the Sexual Offences Act 2003 and manslaughter (in one of its forms).
2. A tort consisting of the breach of a duty of care resulting in damage to the claimant. Negligence in the sense of carelessness does not give rise to civil liability unless the defendant's failure to conform to the standards of the reasonable man was a breach of a duty of care owed to the claimant, which has caused damage to him. Negligence can be used to bring a civil action when there is no contract under which proceedings can be brought. Normally it is easier to sue for breach of contract, but this is only possible when a contract exists. Generally, fewer heads of damage can be claimed in negligence than in breach of contract, but the rules limiting the time within which actions can be brought may be more advantageous for actions in tort for negligence than for actions in contract.

Novus actus interveniens (nova causa interveniens) - [Latin: a new intervening act (or cause)]An act or event that breaks the causal connection between a wrong or crime committed by the defendant and subsequent happenings and therefore relieves the defendant from responsibility for these happenings.

Occupier's liability - The liability of an occupier of land or premises to persons on the land for the condition of the premises and things done there. The occupier for this purpose is the person or persons exercising control over the premises (Wheat v Lacon [1966] AC 522 (HL)). The common-law rules on occupier's liability have been replaced by statutes. The English statutes distinguish between visitors and other persons on land. The Occupiers' Liability Act 1957 imposes on an occupier a common duty of care to all his visitors (i.e. those who enter by his invitation or with his permission) to see that they will be reasonably safe in using the premises for the purpose for which they were invited or permitted to be there. The duty of care may vary according to the type of visitor, e.g. children. Under the Occupiers' Liability Act 1984, an occupier only owes a duty to persons other than visitors (i.e. trespassers and persons who enter lawfully but without the occupier's permission) if the occupier is aware or has reasonable grounds to know of a danger on the premises and that a person may be in the vicinity of the danger and the risk is one against which he may reasonably be expected to offer some protection. The duty, if any, is confined to taking such care as is reasonable in all the circumstances to see that the danger due to the state of the premises does not cause death or personal injury to the person concerned. The duty may be discharged by taking such steps as are reasonable to give warning of the danger or to discourage persons from incurring the risk. There is no duty to warn of obvious risks (Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004] 1 AC 46).
In Scotland, the Occupiers' Liability (Scotland) Act 1960 requires an occupier to show to all persons entering the premises such care as is reasonable in all the circumstances of the case.

Products liability - The liability of manufacturers and other persons for defective products. Under the Consumer Protection Act 1987, passed to conform with the requirements of European Community law, the producer of a defective product that causes death or personal injury or damage to property is strictly liable for the damage. A claim may only be made for damage to property if the property was for private use or consumption and the value of the damage caused exceeds £275. A product is defective if its safety is not such as persons generally are entitled to expect. The persons liable for a defective product are:
• the producer (i.e. the manufacturer, including producers of component parts and raw materials);
• a person who holds himself out to be producer by putting his name or trade mark on the product;
• a person who imports the product into the European Union;
• a supplier who fails, when reasonably requested to do so by the person injured, to identify the producer or importer of the product. There are several defences to liability under the Act, e.g. contributory negligence; that the defendant did not supply the product or did not supply it in the course of business; that the defect did not exist at the relevant time; and that the state of scientific and technical knowledge at the relevant time was not such that a producer of such products could be expected to have discovered the defect. Actions must be started within three years from the date when the claimant first had a cause of action or (if later) first knew or should have known the material facts, but not later than ten years from when the product was put into circulation. Liability under the Act may not be excluded by any contract or notice.
Compensation for defective products can also be obtained under the general principles of contract and tort. The purchaser of a defective product may sue the seller for breach of contract in failing to supply a product that conforms to the contract (including its implied conditions). An action in tort can be brought by anyone whose person or property is damaged by a defective product against the person whose negligence caused the damage; this person may be the manufacturer or someone else, such as a distributor or a repairer.
Regulations establishing a new product-safety regime, based on the requirements of the EU's General Product Safety Directive, entered into force in the UK in October 2005.

Qualified privilege - The defence that a statement cannot be made the subject of an action for defamation because it was made on a privileged occasion and was not made maliciously, for an improper motive. Qualified privilege covers statements made fairly in situations in which there is a legal or moral obligation to give the information and the person to whom it is given has a corresponding duty or interest to receive it and when someone is acting in defence of his own property or reputation. Qualified privilege also covers fair and accurate reports of public meetings and various other public proceedings. The privilege attaching to professional communications between solicitor and client is probably qualified, rather than absolute.
The Defamation Act 1996 lists various types of statement that are subject to qualified privilege. Schedule I Part I lists types of statement that have "qualified privilege without explanation or contradiction": it would not be possible to sue for such statements, unless made with malice. Schedule I Part II lists types of statement that are "privileged subject to explanation or contradiction": these statements may lose their protection if the person defamed is not given adequate opportunity to explain or contradict them.

Remedy (redress, relief) - n. Any of the methods available at law for the enforcement, protection, or recovery of rights or for obtaining redress for their infringement. A civil remedy may be granted by a court to a party to a civil action. It may include the common law remedy of damages and/or the equitable remedies of quantum meruit, injunction, decree of specific performance, or declaration.

Restitution - n. The return of property to the owner or person entitled to possession. If one person has unjustifiably received either property or money from another, he has an obligation to restore it to the rightful owner in order that he should not be unjustly enriched or retain an unjustified advantage. This obligation exists when, for example, goods or money have been transferred under compulsion (duress), under mistake, or under a transaction that fails because of illegality, lack of formality, or for any other reason or when the person who has taken the property has acquired a benefit through his actions without justification.
In certain circumstances the courts may make a restitution order in respect of property. Under the Powers of Criminal Courts (Sentencing) Act 2000, if someone is convicted of any offence relating to stolen goods the court may order that the stolen goods or their proceeds should be restored to the person entitled to recover them. The court will only exercise this power, however, in clear cases that do not involve disputed questions of fact or law. Under the Police (Property) Act 1897, magistrates' courts are empowered to make a restitution order in favour of a person who is apparently the owner of property that has been obtained by the police in connection with any crime, even when no charge can be brought or the goods are seized under a search warrant. If the owner cannot be found, the court may make any order it thinks fit (usually an order for sale by auction). The police have no power to retain property lawfully seized merely because they think the court will probably make a restitution order.

Rylands v Fletcher, rule in - The principle that a person "who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape". It was first stated in the case Rylands v Fletcher (1868) 3 HL 330, in which the defendant had a reservoir built on his land that caused flooding of the claimant's mine. The rule creates a tort of strict liability for extraordinary and unusual things, accumulated on the land, that give rise to an exceptionally high risk of danger or mischief if they escape. There must be an escape on to another's land and only those with an interest in land may sue, as this tort is considered to be a species of nuisance (Transco plc v Stockport Metropolitan BC [2003] UKHL 61, [2004] 2 AC 1). The rule only protects rights to and enjoyment of land and liability is limited to damage of a type that is reasonably foreseeable (Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264 (HL)).

Strict liability - 1. (in criminal law) Liability for a crime that is imposed without the necessity of proving mens rea with respect to one or more of the elements of the crime. There are few crimes of strict liability at common law but such crimes are often created by statute, particularly to control or regulate daily activities; examples include offences relating to the production and marketing of food and offences relating to road traffic. The usual penalty for crimes of strict liability is a fine. Most crimes of strict liability do, however, require mens rea in respect of at least some of the elements of the crime. In some cases statute provides for strict liability, but then allows a defence if the accused can prove that he had no reason to know of or suspect certain facts, so that, in effect, the crime becomes one of negligence. Automatism is a defence to all crimes, including crimes of strict liability.
2. (in tort) Liability for a wrong that is imposed without the claimant having to prove that the defendant was at fault. Strict liability is exceptional in the law of tort, but is imposed for torts involving dangerous animals and dangerous things (the rule in Rylands v Fletcher), conversion, defamation, products liability, and some cases of breach of statutory duty. It is no defence in these torts that the defendant took reasonable care to prevent damage, but various other defences are admitted.

Trespass - n. A wrongful direct interference with another person or with his possession of land or goods. In the middle ages, any wrongful act was called a trespass, but only some trespasses, such as trespass by force and arms (vi et armis), were dealt with in the King's Courts. The distinguishing feature of trespass in modern law is that it is a direct and immediate interference with person or property, such as striking a person, entering his land, or taking away his goods without his consent. Indirect or consequential injury, such as leaving an unlit hole into which someone falls, is not trespass. Trespass is actionable per se, i.e. the act of trespass is itself a tort and it is not necessary to prove that it has caused actual damage.
There are three kinds of trespass: to the person, to goods, and to land. Trespass to the person may be intentional or negligent, but since negligent physical injuries are remedied by an action for negligence, the action for trespass to the person is now only brought for intentional acts, in the form of actions for assault, battery, and false imprisonment. Trespass to goods includes touching, moving, or carrying them away (de bonis asportatis). It may be intentional or negligent, but inevitable accident is a defence. Trespass to land usually takes the form of entering it without permission. It is no defence to show that the trespass was innocent (e.g. that the trespasser honestly believed that the land belonged to him). Trespass to land or goods is a wrong to possession rather than to ownership. Thus a tenant of rented property, for example, has the right to sue for trespass to that property. Trespass to land is a tort but not normally a crime: the notice "Trespassers will be prosecuted" is therefore usually misleading.
However, trespass may sometimes constitute a crime. Thus squatters may be guilty of a crime; it is a crime to trespass on diplomatic or consular premises or premises similarly protected by immunity; and it is a crime to enter and remain on any premises as a trespasser with a weapon of offence for which one has no authority or reasonable excuse, or to be on any premises, land, or water as a trespasser with a firearm for which one has no reasonable excuse. The Criminal Justice and Public Order Act 1994 created the offences of aggravated trespass and collective trespass. The summary offence of aggravated trespass occurs when a trespasser in the open air seeks to intimidate, obstruct, or disrupt a lawful activity, such as hunting; an offender can be arrested and failure to leave the land on the direction of a senior police officer is also an offence. Collective trespass occurs when two or more people are trespassing with the purpose of residing on land belonging to another person. The police have powers to direct collective trespassers to leave if they have caused damage, used threatening or abusive words towards the occupier, or brought six or more vehicles (which may be caravans) onto the land. Failure to leave or re-entry within three months is a summary offence for which a uniformed police officer has a power of arrest. Both collective and aggravated trespass are punishable by a fine and/or three months' imprisonment.

Vicarious liability (vicarious responsibility) - Legal liability imposed on one person for torts or crimes committed by another (usually an employee but sometimes an independent contractor or agent), although the person made vicariously liable is not personally at fault. An employer is vicariously liable for torts committed by his employees when he has authorized or ratified them or when the tort was committed in the course of the employees' work. Thus negligent driving by someone employed as a driver is a tort committed in the course of his employment, but if the driver were to assault a passing pedestrian for motives of private revenge, the assault would not be connected with his job and his employer would not be liable. The test is whether the tort is so closely connected with the employment that it would be fair and just to hold the employer vicariously liable (Lister v Hesley Hall [2002] 1 AC 215 (HL)).The purpose of the doctrine of vicarious liability is to ensure that an employer pays the costs of damage caused by his business operations. His vicarious liability, however, is in addition to the liability of the employee, who remains personally liable for his own torts. The person injured by the tort may sue either or both of them, but will generally prefer to sue the employer. Vicarious criminal liability may effectively be imposed by statute on an employer for certain offences committed by an employee in relation to his employment. Thus it has been held that an employer is guilty of selling unfit food under the Food Act 1984 when his employee does the physical act of selling (the employee is also guilty, though in practice is rarely prosecuted). Likewise, an employer may be guilty of supplying goods under a false trade description when it is his employee who actually delivers them. For an offence that normally requires mens rea, an employer will only be vicariously liable if the offence relates to licensing laws. For example, if a licensee has delegated the entire management of his licensed premises to another person, and that person has committed the offence with the necessary mens rea, the licensee will be vicariously liable.
Vicarious liability for crimes may be imposed in certain other circumstances. The registered owner of a vehicle, for example, is expressly made liable by statute for fixed-penalty and excess parking charges, even if the fault for the offence was not his. If the offence is a regulatory offence of strict liability, the courts often also impose vicarious liability if the offence is defined in the statute in a way that makes this possible.

Volenti non fit injuria - [Latin: no wrong is done to one who consents] The defence that the claimant consented to the injury or (more usually) to the risk of being injured. Knowledge of the risk of injury is not sufficient; there must also be (even if only by implication) full and free consent to bear the risk. A claimant who has assumed the risk of injury has no action if the injury occurs. The scope of the defence is limited by statute in cases involving business liability and public and private transport.

Oxford Dictionary of Law. Ed. Elizabeth A. Martin and Jonathan Law. Oxford University Press, 2006. Oxford Reference Online. Oxford University Press. 10 January 2007 www.oxfordreference.com

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Oxford University Press, Online Resource Centre, Selected Tort Law Terms.

Selected Tort Law Terms