Tort Law Dissertation Topics

 

  1. Defamation

Suggested Title

Who does the current law on defamation benefit the most – claimants or defendants?

Background

It used to be enough to show a minimum threshold of seriousness had been caused (Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985 (QB)). Now, section 1 of the Defamation Act 2013 has raised the bar (Lachaux (Respondent) v Independent Print Ltd and another (Appellants) [2019] UKSC 27).

Defences have been clarified and generally widened. The Reynolds defence has technically been abolished, but it has been replaced with a simplified, more flexible version. The burden of proof lies with the defendant in defences of truth and honest opinion.

 

  1. Rethinking Caparo

Suggested Title

Following the recent cases of Robinson and DSD, is the duty of care principle now uncertain?

Critically evaluate the judgments and consider the implications with particular regard to police duties of care.

Background

In Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 the central question was whether police owe a common law duty to bystanders when pursuing criminals. Lord Reed emphasised that the Caparo test should not be applied formulaically; the approach should be to compare novel cases with existing precedents. This sub-conclusion was unequivocal. Secondly, and where the reasoning parted ways, was the distinction between action and omission. Lord Reed emphasised past precedent while Lord Hughes and Lord Mance emphasised policy.

In Commissioner of Police of the Metropolis v DSD & Anor [2018] UKSC 11 the central question was in what circumstances is police failure to investigate ill-treatment enough for a claim under Article 3 ECHR (prohibition on torture, and inhuman or degrading treatment or punishment). The Supreme Court’s answer: Serious operational failures. Public policy reasons for imposing a duty of care on police were approached differently to Robinson.

 

  1. Policy Decisions

Suggested Title

“…if a judge makes a policy-based decision with which the legislature is not happy, the remedy in a system with parliamentary supremacy, such as we enjoy in the UK, lies with Parliament. Any decision made by a court can always be reversed by the legislature…On the other hand, the notion that Parliament can be reliably expected to step in is often little more than a pious hope, given the enormous pressure on legislative time and the understandably slender political importance which some may think is attributed to most legal issues.”

Lord Neuberger

13th May 2017

Implications of Tort Law Decisions

In the law of tort, judges are effectively policymakers, occupying the unfilled role of Parliament. Discuss.

Background

This question asks you to consider the distinction between theory and practice alluded to in Lord Neuberger’s speech.

Tort law is guided by policy (for example, Caparo Industries plc v Dickman [1990] 2 AC 605). Generally, the courts are explicit about this (The Catholic Child Welfare Society v Various Claimants & The Institute of the Brothers of the Christian Schools [2012] UKSC 56).

Sometimes judgments use phrases like “judicial instinct” to distil policy (BPE Solicitors v Hughes-Holland [2017] 2 WLR 1029). If, in practice, Parliament will not override judicial decisions that it is unhappy with, what does this say about who the real policymakers are?

 

  1. Good Samaritans

Suggested Title

The Social Action, Responsibility and Heroism Act 2015 is a superfluous piece of legislation. Discuss.

Background

The new law theoretically protects a potential defendant from liability if the following conditions are met. (1) acting for the benefit of society, and/or (2) demonstrating a predominantly responsible approach towards protecting the safety or interest of others, and/or (3) acting heroically by intervening in an emergency to assist an individual (Social Action, Responsibility and Heroism Act 2015).

The purpose is to provide legal reassurance to would-be good samaritans.

No case law has considered this Act since it came into force (this itself could be telling). Therefore, answering this question will require statutory interpretation and consideration of comparable cases applying different law. Restating the common law? The Social Action, Responsibility and Heroism Act 2015, James Goudkamp, 2017 is a good place to start.

 

  1. Damages for False Imprisonment

Suggested Title

What is the difference between basic and aggravated damages for false imprisonment? Is there a meaningful distinction?

Background

Damages are usually compensatory within which they can be (i) basic or (ii) aggravated (Thompson v Commissioner of Police of the Metropolis [1998] Q.B. 498). The criterion for each is quite consistently referred to.

However, application of these criterion offers at best complicated and at worst confused reasoning (Fuk Wan Hau v Shusing Jim [2007] EWHC 3358 (QB); Lawson v Glaves-Smith (Dawes Executor) [2006] EWHC 2865 (QB)).

There is some recent doubt over whether there is a real distinction between basic and aggravated damages (R (on the application of Diop) v Secretary of State for the Home Department [2018] EWHC 3420 (Admin) at [44]).

 

  1. Rylands v Fletcher

Suggested Title

It is increasingly challenging for claimants to satisfy the “non-natural use of land” condition in Rylands v Fletcher. Has it become unduly restrictive?

Background

A key concept for Rylands liability is the concept of non-natural use. In 2012 the Court of Appeal narrowed the definition to those uses that are “exceptionally dangerous or mischievous” (Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248). There is also an emphasis on the harm resulting from something which is brought onto land from elsewhere (Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] EWCA Civ 685).

You might also want to consider whether it is a bad thing for Rylands liability to become restrictive. For example, statutes often create strict liability on the same harms sought to be avoided rendering Rylands superfluous (Transco Plc v Stockport MBC [2003] UKHL 61).

 

  1. Causation in Medical Negligence

Suggested Title

Causation in medical negligence cases is not just complex, it’s confused. Discuss.

Consider how the ‘but for’ test has been disapplied and applied in Chester and Duce respectively.

Background

Claimants must establish that ‘but for’ the medical practitioner’s breach, they would not have suffered a loss (Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 Q.B. 428).

Chester v Afshar [2004] UKHL 41 did not apply this test. There are several reasons for this, two of which are (1) that Chester represented exceptional facts, and (2) that it was wrongly decided. A recent case considers Chester in significant detail. It implies that it is highly problematic and suggests that it is ripe for consideration by the Supreme Court (Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307).

Also see Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356.

 

  1. Privacy

Suggested Title

Where public interest is at stake there is “scarcely… any room for restrictions on freedom of expression.”

Guardian News and Media Ltd, Re [2010] UKSC 1

Does this comment overstate, understate or adequately reflect the law on privacy and freedom of expression?

Background

Some cases take a far stricter approach to what constitutes “public interest” and thus protect the right to privacy more than this 2010 Guardian News case (Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)).

It may be that the inconsistency in the case law boils down to a lack of clarity on the parameters of “public interest” (AAA v Associated Newspapers Ltd [2013] EWCA Civ 554). Or is the lack of clarity symptomatic of a bigger problem about competing policy decisions?

 

  1. Vicarious Liability of Local Authorities

Suggested Title

Vicarious liability of local authorities has spiralled out of control. Discuss.

Background

Local authorities can be vicariously liable for physical and sexual abuse committed by foster carers (Armes v Nottinghamshire Council [2017] 3 W.L.R. 1000).

However, local authorities do not have a duty of care towards children arising from their functions under section 17 and section 47 of the Children Act 1989 (Poole BC v N [2019] UKSC 25).

 

  1. Doctrine of Illegality

Suggested Title

Illegality Doctrine: Was the case of Henderson correctly decided?

Outline the illegality doctrine in relation to negligence cases.

Background

This case is currently on appeal to the Supreme Court (Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841).

The defendant hospital negligently discharged the claimant who, while experiencing a psychotic episode, killed her mother. The Court of Appeal was bound to follow a series of earlier cases, which meant dismissing the claimant’s damages claim based on the doctrine of illegality (for example, Gray v Thames Trains Ltd [2009] UKHL 33).

This case was distinguished from an earlier decision where a more flexible approach was taken in a contractual context (Patel v Mirza [2016] UKSC 42)