Assessment Coversheet

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Candidate Number: 100351

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Degree Title: bachelors of law

Module Title: tort law

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Module Code: LA 2001

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Enter the numbers, and sub-sections, of the questions in the order in which you
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Date: 3.6.2021

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1.

a) Morehem has identified 2 unarticulated principles which is known as Societal

attitudes & Privacy Signals .

Where the first is a Society-Focused Route , which focuses on societal attitudes to

the information in question . Whether reasonable people would regard the matter as
private comparable , of those to whom information is exposed . Reflects society
opinion of when information should be considered private.

While Privacy Signals is more Claimant-Focused Routte and protection is

determined by looking at privacy signals given by claimant , to make it clear to D,
actions which are unwelcome and society would usually
expect such a signal to be respected .

This 2 principles are independent but interconnected ways of establishing

reasonable expectation of privacy . Moreham hopes this
framework will help give doctrinal coherence and be of some practical use to the
law of privacy in the future .

b) Moreham refers to the Californian jurisdiction, citing the case of Schulman,

explaining that the question of what constitutes reasonable expectation of privacy in
California, is determined by looking at what defendants are usually allowed to do, or
commonly do. There was no reasonable expectation of privacy in respect of
paramedics attending to the claimant at the scene of a serious road accident, but
there may be expectation of privacy in respect of conversations that take place in a
rescue helicopter. This was because it was common for journalists to attend and
record the scenes of horrific accidents and rescuers, but no law or custom allowing
the media to travel with the claimant in the ambulance or enter the hospital without
the claimant’s consent. In California, for instance the parameters of privacy
protection is not determined by the claimant or societal norms, but by the
defendant. The author uses this information to show how the position is in contrast
in England, in that reasonable expectation of privacy depends on whether the
information is generally regarded as private by society, taking into account relevant
factors. However, the author regrets that English law does not make this distinction
clear even though in JR38 the Supreme Court did acknowledge that privacy law
focuses on the protection expected by the claimant based on the circumstances
and reasonable expectation. This, can be rectified by adding the word protection to
the reasonable expectation of privacy test, so that it reads ‘reasonable expectation
 of privacy protection” instead, to emphasise that privacy rights should be mapped
out by the claimant and not the defendant.

c) Courts sometimes determine reasonable expectation of privacy based on

categories recognised in law. These include the following categories: (i) appearance
or workings of physical body; (ii) sexual encounters or activities; (iii) intimate details
of personal relationships; (iv) intimacies of family and domestic life; (v) experience
of trauma, grief or strong emotion; (vi) inner workings of the mind; and (vii) detailed
patterns of daily life. Campbell, Mosley, PJS, McKennitt, Gulati, Murray, Peck and A
v B Plc are all examples of cases that created these categories respectively.

But the subjective nature of privacy interest will make it difficult to rely on categories
for a theoretical definition of the privacy interest. Yet, at a doctrinal level, categories
provide readily-understandable guidance on what may satisfy the REP test. The
author cites Barendt who even talks about the legislature coming up with a list of
these categories to assist in privacy claims.
If facts fall within either of the categories, society is more likely to regard it as
entitled to privacy protection. The more squarely it relates to a core interest in a
category, the more strongly social mores will support the need for privacy
protection. But the author cautions that this approach should be used carefully.
Courts must clearly articulate the interest at the heart of each category and why it is
considered private. For instance, the category involving appearance and physical
body and its functions and activities. Many types of information could fall in this
category but not all are considered private by society. Solove says protection is
reserved for more primal aspects of individuals’ lives and body, i.e. more “physical,
instinctual and necessary” bodily aspects which would be embarrassing to expose.
The former should not so easily fall within the category while the latter should. So,
the more squarely the facts fall within a category or the more categories are
engaged, the more likely that there is a social perception of privacy and thus,
reasonable expectation of privacy. The author therefore says, that exposure of a
person’s appearance while walking down the street or that they have a cold should
not fit with the category of appearance and physical body at all while things like
toileting, trauma, injury and nudity should, and would satisfy the societal attitudes to
reasonable expectation of privacy. So, the category approach while useful, must be
applied meticulously and with care.

d) Particular problems , is that Mutually reinforcing principles that lead to the same
conclusion , where Either one needs to be satisfied to establish reasonable
expectation of privacy, for a prima facie actionable claim
Where the claimant can start by applying the 1st principle& Whether or not it is
satisfied, the 2nd principle could be applied If the 1st principle is not satisfied,
but the 2nd principle is, then this will be enough to establish a prima facie claim for
privacy ® Otherwise, both principles will be satisfied and lead to the same outcome
about reasonable expectation of privacy,
 This can be easy where the facts are simple and straightforward, the two principles
are likely to reach a consistent conclusion, . But where facts are more complicated,
one will assume greater importance that the other, and 2nd principle likely to push
for a finding of reasonable expectation of privacy, notwithstanding social opinion
under the 1st principle.

Q3
The parties Michael (G), Anna (A) & Billy (B), would bring an action for
breach Occupier's liability against Gray Gardens (G), where Their injuries is caused by the state of
the premised, satisfying, S1(1) OLA 1957 & S1(1) OLA 1984, where A to
fall & injured her hip, which is resulted from the broken stairs, B falling from the Quarry on the
premised & sustained serious injuries. M’s rash, which is suspected to result from the Weed killer
in the rose garden for injuries arose by the state of the premise, Cunningham v Reading.

On the fact it could be submitted that G would be regarded as a premise as per S 1 (2) of the
Occupiers liability Act (OLA) 1957 & S1(3) OLA 1984. Haseldine & Wheeler applied.
Where G it is also is under dual occupancy, as in Wheat v Lacon & AMF Building by both,
occupiers Lord & lady Bountiful & the Ancient England Plc.
( occupier & G – would be regarded as one )
thus, it could be submitted both parties are the occupiers, & would have sufficient degree of control
over the premised thus could be stated as the occupier to be held labile for.

Based on the facts A, M & B will be argued as lawful visitors as per S 1(2) OLA 57, as indicated by
the question, that they are visitor, who purchase ticket of entry & obtains maps of G, from
the occupiers. Although some might argue that B, age 6 might be a trespasser by going to
the “hidden Quarry ‘, but since then, location was visible on the maps and no signs of restriction to
approach the Quarry was place, thus there would be a Gould v McAuliffe applied, Thus, it could be
submitted that all of them are lawful visitor & will be subjected to OLA 57. Who has legal rights to
be on the premise, S 2(6). per S 2(1), would owe a common duty of care t towards them.

Although in order to avoid liability for A injuries, G might argue that Roger
(R), independent contractor, had failed to excise his obligation to repair the
external stair case properly S 2(4)(b). By applying Fairchild v GFS. & Naylor v Payling & stating
G would not be liable for carelessness of the hire employee, However, A could counter G argument
by applying Cunningham & Woodward, that G would have been cable of checking whether the stair
was properly repaired, & S 2(2) indicate that owed an occupancy & activity duty of
towards visitors' purpose in which the enter in to the premised.
Thus, it could be submitted A was merely using the premise, as a normal visitor. Which G failed to
take reasonable Care to endure to be reasonably safe, failing to comply with S 2(2) of OLA 57
distinguish from Cole v Davies.
Thus, it could be submitted that G would still be liable for A’s injuries.

With regards to B claim's, a child of 6-year-old, that obtains serious injuries, after the slip, it could
also be submitted to be successful. As G has failed to satisfy S 2(3)(a), by applying the precedent in
Moloney v Lambeth, Parry v Buthins & Bourne v Marsden. Even if G would want to per sue
a counter argument of allurement (Glasglow & Jolly) & M had failed to take care of B, in excising
her parental responsibility. This would not likely be accepted by the courts., as G is a Is a visitor
attraction site, where it is expected for. Parents to bring their children of young age.

With regards to M ‘s rash, which is not sure to be a result of the rose garden or not, as she could
have developed it, prior to entering G ‘s rose garden. However, we would discuss it as she had
actually developed it from the reaction of the Weed killer in the rose garden. G would
argue that, as per S 2(5) as if she had known about her allergic reaction, and try to dismissed this
claim based on volenti . But since the facts are silent, we would maintain a presumption that M has
no knowledge of her allergic reaction & G ‘s argument would fail again.
Lastly it could be submitted that G would like to rely on the Exclusion clause, (S 2(1) & white),
place on the ticket. However, indicate that occupiers could try exclude liability of the
premised towards lawful visitors in place of business, but this will be subjected to Unfair Contract
Terms Act 1977 & Consumer Rights Act 2015. Whether the defense would be successful or not, is
at the Discretion of the courts. But it is unlikely so, as both of the Act ‘s does not allow for
exclusion of death & personal injury by the seller.
Thus, it could be concluded that all the claim, A, B & M would be successful

Q5
This Question deals with the law of nuisance. This can be submitted an issue with regards to private
nuisances
Angus (A) & Bill (B) would like to bring a claim with towards Sylvia (S) (creator of nuisance) for injunction of
the noise of the cockerel crowing. & The horrible smell from the manure, which comes
each year, that also worsen Bill autoimmune disease. Thus, a claim for the cost of Bill staying in the hospital
for over a week, will also be raise. While on the other hand Slyvia would not like make any changes
to small garden business.
In order to bring a claim, the Claimant must have proprietary interest in the land, the Question is silent on
this whether both A & S has proprietary interest in there, thus, it will be presumed, that both individual
dose for the purpose of furthering our discussion. Since Lord Goff indicates that only those who has
interests in land should have the right to ask for an injunction against another who also has interests
in land, this is because private nuisance focuses on the balance between proprietary interest

Next, the question, which need to be satisfied, is whether the smell constitute unreasonable interference
to A quiet and peaceful enjoyment of land (Hunter). Barr v Biffa Waste Services states that the test is simply
what an ordinary person could reasonably be expected to put up with in all the circumstances of
the case. On the facts, it is submitted that, the noises, smell coming S home dose interfere with A
enjoyment of land, to the point that every morning she is awake by the noise & the worsen smell has led to
a server auto immune reaction in Bill.

Walter v Selfe indicate that smell amounted to nuisance, it supported by Barr v Biffa smell from waste
treatment on landfill site amounted to private nuisance, where this disturbs enjoyment of private
property without unreasonable interference to it, thus satisfying the second criteria

The next element that needs to be establish, was the interference unreasonable. Sedleigh-Denfield “A
balance has to be maintained between the right of the occupier to do what he likes with his own, and the
right of his neighbor not to be interfered with
It could certaily be submitted that as could no longer enjoy his used of land & unable to host guess with
peculiar sensitivity, such as Bill. form A point of view, the disturbance is certainly intolerable .

However, S could argue that using locality, for the court the weight factors from S;
s points view, since they live in a village, keeping poultry, handling large amounts of manure,
for growing vegetable is not unreasonable for her, as she has a small business & making a lively hood
for herself, since they are in areas which are not densley populated.

However, A can counter argue with the placement of the manure after A complains to S, was
done with malice,applying Christie v Davey & Holywood Silvas, where she purposefully put it in a location
where the order would worsen & becomes intorable le in-A’a land.

Thus, could the claim for the type of harm mention above be recoverable? it is submitted that, A claim will
fall under the category loss of enjoyment or amenity & value of land, which could be recovered in law
of nuisance, after weighing the above factors.

However, S will also counter argue that in accordance with the decision in McKenna v
British Aluminum & Dobson v Thames, towards the claim of damages for Bill, could not be upheld, as his
condition is based on an abnormal sensitivity, Robinson v Kilvert & does not hold any proprietary claim.

Thus, itis best, that A is advice to bring a separate action in breach of Article 8 ECHR, for the recovery of
nominal damages of Bill sHospital for over a week. Hunter & Mckenna applied, this would enable for Bill
to be able to claim nominal damages & A Could Still claim injunction for the noise & smell pollution, as
supported by the cases of, Barr, Coventory ,, Wheeler, Christie & Sturges.

S would likely to raise the defence of 20-year prescription & A’s coming to the Nuisance, but
the questions are silent on whether, they could be raising or not. S Would also likely to
counter argue, that, her business is increasing public utility, but not likely to be accepted by the
courts as, her business is small & dose not really has big enough impact for public utility policy
to used. Miller. .
Thus, it could be submitted, that it is likely that A ‘a claim with regards to the noise & smell could
be establish, & obtains remedies of injunction, if the courts accept that grounds of unreasonableness to
be satisfied. Coventry.
4.

Is A question with Regards to Trespassed to person, where Julia (J)& Winstone (W) would
like to bring an Action Against Romeo (R). W action towards R, would be for assault, in
regards to the harassing & threatening phone calls, Whereas for J, she would bring an
action for battery. While R would like to bring a claim towards J. in respect the battery of J
shoving him & false imprisonment in the bath room.

WvR

The question is whether the phone calls & threat, constitutes assault, that is defined as
any act which causes the claimant to apprehend immediate violence (Colin v Wilcock). To
establish assault, it must first be shown that there was some intentional or deliberate act
done by R toward W. R v Meade & Belt held that words alone could to constitute assault if
uttered without threatening gestures. Further, any threat expressed by words, which
cannot realistically be carried out would also not constitute a deliberate act for assault:
Tuberville v Savage.

Here the courts would be unlikely to allow W claim for assault, W could clearly not satisfy,
the requirement of apprehension of immediate violence. Since it was done through a
phone call. However, With the Enactment of S1 & S 3 Protection from harassment Act
1997 & claim and injunction towards R & damages for the harassment.
JvR

In establishing battery, which is unlawful, intentional and direct application of force on

another., first it must be shown that force was applied. Even the most trivial contact or
touching could amount to force, Cole v Turner, Pursell v Horn.

On the facts, R had Kiss J, which is clearly constituted as unlawful touching as she pushes
him directly afterwards, which also satisfy direct application & intention, element, Reynolds
v Clarke, Livingstone v MD. As, this could be the intention of R even since he received the
phone call from J, even before he entered the premises, based on R describe personality I
the question & doesn't seem like a spur of the moment action, with no intention of ever
doing so.

This it could be submitted that J could be successful in bringing an action of Battery

against R, as all the element that needs to be establish, has presumed to be satisfied

J would also be advised to bring an action of intentionally inflicting psychiatry harm against
R, by using the rule in Wilkinson v Downton, Where R deliberate act’s, could be argued to
cause J emotional distress, as she was merely trying to makes a means with him & is
currently, happily in loved with W.

However, this will only succeed if J can prove that it is not mere emotional distress but a
recognized psychiatric injury and satisfy the 3 elements in Rhodes v OPO, which was
followed by ABC v West Heath. .

RvJ

R would be presumed to bring a counter claim against J for battery and false
imprisonment, for her actions, of shoving him & false imprisonment in the bath room.

In order to establish, R most prove that J had deprive him of his freedom of movement,
without the express or implied authority of the law as describe by Lord Griffins, the law
attached important to individual liberty. & Can be actionable per se.

It can be submitted, by restraining R by locking him up in a room, “imprisonment” is

satisfied, Meering-Graham v White Aviation. Even though R was only locked up
temporarily, this is still imprisonment, just by the mere fact that he was locked up. Grainger
v Hill.

Next, it has to be shown that the imprisonment was unlawful. This will be established, as it
was against R’s will . Although intention is not required for liability, J can be seen to
deliberately and intentionally locked R up, and as such, false imprisonment is satisfying.

However, J may try to raise the defense of necessity, arguing that if she did not do so, R

may cause serious harm to her, judging by his rash actions. However, the necessity
defence has been applying only very sparingly, i.e., in cases involving medical treatment
(Re: F), as thus, may not apply here. Alternatively, J may argue that She was affecting
citizen’s arrest pursuant to S3 Criminal Law Act 1967. But the most appropriate Defence in
her situation, would be Self defence, which has been further codified in S 329 of the
Criminal justice Act, so long as J can show that, J had imprisonment him to defend herself
& used reasonable force in doing so.

This defence will most likely be upheld on the facts, the amount of force to push him that
the bath room was reasonable & not excessive in Order to protect herself in the current
situation. thus, J will avoid liability as she will be able to show that force was in fact used
to prevent R further actions & further harms towards herself, as it would unsure of what R
further actions maybe in the circumstance.

Thus, in conclusion, it could be submitted as a whole, that R will be held liable in respect
assault and for of harassment towards W. Battery for the involuntary kissing & possible
breach of Psychiatric injury in Wilkinson v Downton,

in respect of J. And it could be submitted that J will not be found liable towards R for
battery and false imprisonment, because of the statutory defence & all his claim will be
dismissed.