Breach of confidence/ Tort of misuse of private information
Jean-Claude is entitled to make a claim against Ronald as he posted his employment contract and bank details online. Jean-Claude’s claims could be for a number of things, including breach of confidence, negligence etc. However, as there is still no invasion of privacy tort after Wainright v Home Office1, the ruling in Campbell2 may serve as an authority as it relies on the tort of ‘misuse of private information’. The tort of misuse of private information with derives from an action of breach of confidence, which is used when a “duty of confidentiality”3 exists. In this instance between an employer and his employee, where the employer ought to know that his employee’s employment contract and bank details have “the necessary element of confidence about it(them)”4.
If it is found that Jean-Claude had a ‘reasonable expectation of privacy’ and his right to privacy under Article 8 of the Human Rights Act 1998 outweighs Ronald’s right to post the picture under Article 10 of the HRA 1998, then action could be brought against Ronald. It is reasonable to assume that the court would rule in Jean-Claude’s favour as the exposure of his bank details puts him at financial risk.
Assault, as defined by Goff LJ in Collins v Willcock,5 is ‘an act which causes another person to apprehend the infliction of immediate, unlawful force on his person.’6
It can be said that Jean-Claude was violently threatened by Boris, causing him to apprehend unlawful force. However, the immediacy of the force is questionable as Boris’ threat may be considered as ‘conditional’. The ruling in Tuberville v Savage7 may be relied on as the claimant is given an option to avoid violence. Therefore, Jean-Claude had no reason to apprehend immediate force or harm. It is also feasible to consider that that Boris’ threat does not constitute as assault because as Stephens v Myers8 states, “there must…be means of carrying that threat into effect”9 and at the time the threat was delivered Boris was ill and in pain.
It can, however, be argued that Jean-Claude did have reason to apprehend immediate force as they are on a boat (size not specified) and he has no means of escape or distancing himself from Boris at great length. Also, R v Ireland10 states that words alone may constitute as assault, although this is reversed in R v Meade11 as “traditionally…threatening words need to be accompanied by a physically intimidating gesture”12 to satisfy the requirements of assault.
Boris may also have a lawful justification. His actions may be deemed self-defence on the grounds that Boris genuinely believed that Jean-Claude was trying to poison him. Unlike criminal cases, Boris needs to have an honest and reasonable belief that Jean-Claude meant him harm and it is made clear that they have a ‘strained relationship’ that may include hostile behaviour towards each other.
Breach of contract
On account of Boris’ illness, Ronald promised to split his £800 between Jean-Claude and Vladimir as well as an extra 25% for Jean-Claude in exchange for them working harder to meet the deadline. Upon reaching dry land, Ronald refused to honour this promise.
For this modification of the contract to be binding, consideration must be present.13
If Jean-Claude’s extra work to cover Boris’ shift and make the deadline in exchange for more money is accepted as good consideration, then this modification of the contract is enforceable and Jean-Claude can make a claim of breach of contract against Ronald.
However, this situation corresponds to Stilk v Myrick14 in the sense that one might say that Jean-Claude had a pre-existing contractual obligation to Ronald to do his best to meet the deadline and was performing no more than he was contracted to do. In Stilk v Myrick, Lord Ellenborough ruled that the modification of the contract was void as there was no consideration in a case such as this.
It can also be argued that the promise was made under economic duress as Jean-Claude was aware of the stipulation of the delivery deadline and took advantage of Ronald’s desperation. As seen in Williams v Roffey15, contractual variations may be made void in the case that duress is found.16 It is safe to say Jean-Claude’s threat was illegitimate as he threatened to breach the existing contract. This potential breach of contract caused Ronald to accept his unfair proposal, which is the same way a reasonable person in Ronald’s desperate situation would have acted, satisfying all the requirements of economic duress.
Conversely, if it is found that economic duress is not present due to the fact that Ronald did not “take steps to avoid this contract”17, for example hiring a fourth sailor to replace Boris or negotiating with Jean-Claude, then the promise may be binding and Jean-Claude can claim for his share of Boris’ earnings as well as an additional 25%.
Breach(es) of contract
Two potential breaches of contract occurred during the voyage, Vladimir may be able to make claims against Ronald concerning money that may be owed:
(a)Ronald promised Vladimir £200 if he temporarily repaired the boat engine and only paid £100 after the job was completed. Vladimir might be able to claim the outstanding £100 as the promise seems to be a simple case of offer and acceptance with consideration and mutual benefit – Vladimir receives £200 in exchange for fixing the boat engine and Ronald dodges the penalty.
Vladimir’s acceptance of the part payment of the money owed to him might be seen as a practical benefit as he is ‘obviating the disbenefit’18 of receiving no money at all and no more work with Ronald. If Foakes v Beer19 is applied to this situation, then Vladimir’s practical benefit does not amount to consideration, meaning this variation of the original promise is not contractually binding and he is therefore entitled to claim the outstanding £100. However, Williams v Roffey establishes that practical benefit constitutes as consideration and seems to be more analogous to the situation at hand as it involves contractors and contractors performing services and a penalty.
On the other hand, Central London Properties v High Trees House Ltd20 may be considered in regard to a promissory estoppel, “a promise to accept a smaller sum in discharge of a lower sum…is binding notwithstanding the absence of consideration.”21 If this authority is considered then Vladimir is bound by his promise to accept the part payment and may not be able to claim for the outstanding sum.
(b)Like Jean-Claude, Vladimir might have made a claim against Ronald as he was promised a share of Boris’ earnings upon completion of the job and Ronald went back on his promise after the job had been completed. However, as discussed above, Stilk and Myrick is an authority for the proposition that this modification of the contract cannot be binding as there is lack of consideration due to Vladimir’s pre-existing contractual obligation to do the best he can to meet the deadline.
A battery is defined as “the intentional application of unlawful force to another person”22. Ronald squirted ketchup on Vladimir, resulting in a violent reaction brought about by emotional distress from a traumatic event in his past. Ronald’s actions may not amount to a battery as the application of unlawful force in this case was completely unintentional. However, according to Gibbon v Pepper23, Vladimir can make a claim against Boris as he shoved Ronald, resulting in him losing his balance and grabbing the ketchup bottle for support.
Despite Boris’ intentional application of unlawful force and their immediate effect, his actions may not satisfy the requirements for a battery. He may have the lawful justification of self-defence as he genuinely believed that Ronald was trying to kiss him without his consent.
However, it is a requirement of self-defence for the defendant’s action to be “proportionate to the force (to be) exerted against them”24. If the court finds that shoving Ronald hard enough for him to fall over might not be considered proportional to a suspected attempt at a kiss, then Vladimir can make a claim against Boris.
In response to Vladimir’s violent reaction, Ronald slapped Vladimir across the face, which fits all the requirements for a battery except that Ronald has the justifiable excuse of self-defence. It is likely that the court would find that Ronald’s action was proportionate to the punch he received and that he acted in self-defence.
Boris genuinely believed that Ronald was trying to kiss him without his consent, causing him to reasonably apprehend the immediate and direct application of unlawful force, a requirement discussed above. However, to satisfy all the requirements of assault, Ronald must intend for Boris to apprehend his actions, which is not the case in this instance as he was only attempting to save his life albeit without his consent. Ronald’s actions also do not satisfy the requirement for his application of force to be unlawful, he may have the justification of necessity if Boris was to make a claim against him for assault or non-consensual treatment.
Boris could make a claim against Jean-Claude for battery as he ‘put his arm around him’ without his consent. Technically, Jean-Claude’s actions satisfy all the requirements of a battery. The force was applied intentionally. Despite the fact that his intention was to comfort Boris, Williams v Humphrey25 highlights the rule that “the defendant will be liable to compensate the claimant…even if he did not intend to cause the claimant harm.”26 Jean-Claude’s contact was direct and immediate and without lawful justification. However, Goff LJ in Collins v Wilcock27 states that touching will only constitute as a battery if the contact is not “generally acceptable in the ordinary conduct of everyday life.”28 The parameters of what is ‘ordinary conduct’ are wide and vague and rely on many factors including age, gender etc.
It is arguable that putting an arm around a co-worker is acceptable conduct, which would diminish Boris’ claim against Jean-Claude but taking their ‘strained relationship’ into account, contact of that nature wouldn’t be expected especially after Boris accused Jean-Claude of poisoning him.
Boris could also claim damages for battery against Jean-Claude as he admitted to poisoning his food, resulting in his hospitalisation. Jean-Claude’s actions fit all the requirements of battery, his admission proves his intention and he has no lawful justification or excuse. Similarly to DPP v K (A minor)29, his unlawful act seems to be ‘consequential’ rather than directly and immediately affecting Boris. However, the “shortness of time”30 is sufficient to constitute as a direct and immediate unlawful force, strengthening Boris’ claim against him. 407
Boris shoved Ronald, an intentional application of force that directly and immediately resulted in Ronald losing his balance and falling. However, Ronald’s claim against Boris may be unsuccessful as self-defence could be argued in this case due to Boris’ honest belief that he was about to be touched in a way that he did not consent to.31 However, Ashley v Chief Constable of West Sussex Police32 denotes that the belief must be reasonable. Determining how ‘reasonable’ a belief is very difficult as views may differ.
To satisfy the requirements of self-defence, Boris’ reaction must also be proportional to the force he expected, leading to the issue of whether a shove is a proportional response to a kiss and if perhaps Boris was a woman, the view would be different.
Ronald may also be able to make a claim against Vladimir for battery as he punched him in the nose. This is a difficult situation to judge as intentional application of force is a requirement of battery and it is impossible to know Vladimir’s intention (if he had any). It is not mentioned if Vladimir has a recognisable medical condition that may cause violent reactions or automatism but it is implied that he may be suffering from post-traumatic stress disorder. However, if it is found that Vladimir had the intention of applying force as an accidental punch is unlikely, then his actions may amount to a battery and Ronald would be entitled to claim damages.
With the evidence on Theresa’s mobile phone, there is a clear case of harassment that Ronald can claim damages for. The Protection from Harassment Act 1997 provides a vague definition of harassment and the term seems to be flexible in case law. However, section 1 of the PfHA 1997 states that “a person must not pursue a course of conduct (a) which amounts to harassment of another and, (b) which he/she knows or ought to know amounts to harassment of the other.”33 A ‘course of conduct’ is defined as harassment on two or more occasions of “similar type and context”34 in the PfHA 1997, which is precisely what a “series” of threatening messages and videos may be described as.
The tort in Wilkinson v Downton35 may also be relied on due to the psychiatric distress he experienced as a result of the harassment. However, the extent of Ronald’s distress is not indicated and Wainright “prevents the application of the tort in Wilkinson v Downton in cases of intentionally caused anxiety or distress that falls short of a psychiatric illness”36.
1 Wainright v Home Office 2003 UKHL 53; 2004 2 AC 406
2 Campbell v Mirror Group Newspapers Ltd 2004 UKHL 22
3 Kirsty Horsey & Erika Rackley, Tort Law (Oxford University Press) 446
4 ibid 446
5 Collins v Wilcock 1984 3 All ER 374
6 Kirsty Horsey & Erika Rackley, Tort Law (Oxford University Press)408
7 Tuberville v Savage (1669) 1 Mod Rep 3; 2 Keb 545; 86 EnG 684
8 Stephen v Myers (1830) 4 C 350; (1830) 172 ER 734
9 Kirsty Horsey & Erika Rackley, Tort Law (Oxford University Press) 410
10 R v Ireland 1998 AC 147 (HL)
11 R v Meade and Belt (1823) 1 Lew CC 184
12 Kirsty Horsey & Erika Rackley, Tort Law (Oxford University Press) 410
13 Janet O’Sullivan & Jonathan Hillard, The Law of Contract (Oxford University Press) 96
14 Stilk v Myrick (1809) 2 Camp. 317; 170 ER 1168
15 Williams v Roffey Bros and Nichold (Contractors) Ltd 1990 2 WLR 1153; 1991 1 QB 1
16 Janet O’Sullivan & Jonathan Hillard, The Law of Contract (Oxford University Press) 259
17 ibid 266
18 Hill A, ‘Something for Nothing: Explaining Single-Sided Contract Variations.’ (2015) 2015 Oxford Undergraduate Law Journal 75
19 Foakes v Beer (1884) 9 App Cas 605
20 Central London Properties v High Trees House Ltd 1947 KB 130; 1956 1 All ER 256
21 Janet O’Sullivan & Jonathan Hillard, The Law of Contract (Oxford University Press) 120
22 Kirsty Horsey & Erika Rackley, Tort Law (Oxford University Press) 404
23 Gibbon v Pepper (1695) 1 Ld Raym 38
24 Kirsty Horsey & Erika Rackley, Tort Law (Oxford University Press) 424
25 Williams v Humphrey 1975 The Times, February 20
26 Kirsty Horsey & Erika Rackley, Tort Law (Oxford University Press) 405
27 Collins v Wilcock 19843 All ER 374
28 Kirsty Horsey & Erika Rackley, Tort Law (Oxford University Press) 406
29 DPP v K (A minor) 1990 1 WLR 1067 (QBD)
30 Kirsty Horsey & Erika Rackley, Tort Law (Oxford University Press) 408
31 ibid 424
32 Ashley v Chief Constable of West Sussex Police 2008 UKHL 25; 2008 1 AC 962
33 Protection from Harassment Act 1997 s1
34 Kirsty Horsey & Erika Rackley, Tort Law (Oxford University Press) 431
35 Wilkinson v Downton 1897 2 QB 57 (QBD)
36 Kirsty Horsey & Erika Rackley, Tort Law (Oxford University Press) 427