SCHOOL OF LAW

L201 - LAW OF TORTS MODULE

Kenneth Mulife

LLB (UNZA), LLM (UZ), AHCZ

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COURSE CONTENT

Unit 1: Introduction to The Law of Tort

1.1 Meaning and Functions of the Law of Tort

1.2 Definition of Tortious Liability
1.3 Law of Tort Distinguished from Criminal Law and Contract Law
1.4 Faulty and Non-Faulty Liability; Joint and Several Tortfeasors

Unit 2: Negligence

2.1 Donoghue v. Stevenson

2.2 Duty of Care: Test for determining existence of a duty of care (Foresight,
Proximity)
2. 3 Breach of Duty of Care: Standard of Care and the ‘Reasonable Man’ Test; liability for
omissions; Proving Negligence and Res Ipsa Loquitur;
2.4 Consequent Damage

Unit 3: Negligence and Novel Duty Situations

3.1 Nervous Shock (Psychiatric Injury)

3.2 Economic Loss caused by Careless Statement (pure economic loss)
3.3 Economic Loss caused by Negligent Misstatement
3.4 Liability for Omissions

Unit 4: Causation and Remoteness of Damage

4.1 Relationship between Causation and Remoteness of Damage

4.2 Causation: Novus Actus Interventions; Proofing Negligence and Res Ipsa
Loquitur
4.3 Remoteness of Damage
4.4 Negligence Defences: Volenti non fit injuria; Contributory Negligence

Unit 5: Trespass to The Person

5.1 Assault and Battery

5.2 False Imprisonment
5.3 Defences and Remedies to Assault, Battery and False Imprisonment

Unit 6: Trespass to Land

6.1 Definition of Trespass and Land

6.2 Actions Amounting to a Trespass: Airspace; Highway; Trespass ab initio

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6.3 Defences: Consent; Lawful Authority; Necessity
6.4 Remedies: Damages; Injunctions; Re-entry; Action for the Recovery of Land

Unit 7: Occupiers’ Liability

7.1 Definition of Occupier and Premises

7.2 Occupier’s Liability Act, Cap
7.3 Liability to Trespassers and Non-Visitors
7.3 Liability of Vendors and Lessors

Unit 8: Nuisance

8.1 Statutory Nuisance

8.2 Public and Private Nuisance, and their Differences
8.3 Parties to an action: Who can Sue and Who can be Sued?
8.4 Defences: Prescription; Statutory Authority; Planning Permission
8.5 Remedies: Damages; Injunction; Abatement of the Nuisance

Unit 9: Strict Liability: Rule in Rylands V. Fletcher

9.1 Definition of the Rule in Rylands v. Fletcher

9.2 Defences: Statutory Authority; Consent; Act of a Stranger; Act of God; Default of
the Claimant

Unit 10: Liability for Animals

10.1 Common Law Liability Relating to Animals

10.2 Statutory Liability under the Act
10.3 Liability for Injury to Livestock caused by Dogs

Unit 11: Defamation

11.1 Definition of Defamation

11.2 Distinction between Libel and Slander
11.3 Defences: Justification; Fair Comment; Absolute Privilege; Qualified Privilege;
Innocent Publication; Consent; Offer of Amends
11.4 Remedies: Injunction; Damages
11.5 Malicious Prosecution and Malicious Abuse of Process

Unit 12: Torts Relating to Goods

12.1 Liability for Defective Products

12.2 Interference with Goods: Trespass to Goods; Conversion; Defences to Trespass

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 and Conversion; Remedies

Unit 13: The Economic Torts

13.1 Deceit
13.2 Malicious Falsehood
13.3 Passing Off
13.4 Interference with Trade: Conspiracy, Intimidation, Inducing a Breach of Contract

Unit 14: Vicarious Liability

14.1 Basis and Reasons for Vicarious Liability

14.2 Master and Servant; Liability for Agents; Employer and Independent Contractor /
Employees
14.3 The Control Test; The Integral Part of the Business Test; The Course of
Employment.

Unit 15: Death in Relation to Tort

15.1 Death as Extinguishing Liability

15.2 Death as Creating Liability
15.3 Relationship of the Fatal Accidents Act and the Law Reform (Miscellaneous
Provisions) Act.

Unit 16: Remedies and Defences

16.1 Remedies: Damages (nominal damages, compensatory damages, contemptuous

damages, aggravated damages, punitive or exemplary damages); Injunction;
Other remedies.
16.2 Defences: voluntary assumption of risk (volenti non fit injuria); contributory
Negligence; illegality (ex turpi causa non oritur action); inevitable Accident; act of
God; necessity; mistake; exclusion clauses and consent.

Course Assessment

Continuous Assessment: 30% (One Assignment of 10% and Mid-semester exam of 20%) and 70%
final exam- Full/ Part Time Students.

One Assignment of 10% and one test of 20%- Distance Students.

Prescribed Reading / Recommended Text Books

• Chris Turner and Sue Hodge, Unlocking Torts,

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• E. W. Rogers (2010), Winfield and Jolowicz on Tort, 18th Ed. London: Sweet and Maxwell
Limited.
• Vivienne Harpwood, Principles of Tort Law, 4th Edition, 2002, London

Recommended Books

• Clerk and Lindsell (1989), Torts, 16th Ed. London: Sweet and Maxwell Limited.

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UNIT 1: INTRODUCTION TO THE LAW OF TORTS

THE NATURE OF A TORT

A tort is committed against an individual (which includes artificial persons) as opposed to the
State. This is because all persons have protected rights at law and abuse or violation of such
rights may occasion the claim of damages, injunctions etc.

The standard tort consists of the following elements:

• Act or omission by the Defendant;

• Damage occasioned to a claimant as a consequence of the act or omission; and this can
be represented by the widely accepted model:

• act (or omission) + causation +protected interest + damage = liability

The main purpose of the law of tort law is compensating the victims of wrongdoing for the
injuries they suffer as a result.

FUNCTIONS AND MEANING OF THE LAW OF TORTS

Functions of the Law of Torts

It is not possible to assign any one aim to the law of torts, which is not surprising when one
considers that the subject comprehends situations as disparate as ‘A’ carelessly running down ‘B’
in the street; or ‘C’ calling ‘D’ a thief, or ‘E’ giving bad advice to ‘F’. The law of torts has primarily
four functions: -

1). It provides remedies for wrongs;

2). It provides compensation for the wrongs

3). It acts as a deterrent and provides protection; and,

4). Tort law is concerned with corrective justice and distributive justice.

In general, therefore, the law of torts exists for the purpose of preventing men from hurting one
another, whether in respect of their property, their persons, their reputations or anything else
which is theirs. The fundamental principle of this branch of the law is ‘alterum non laedere’ – to
hurt nobody by word or deed.

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An action of tort is therefore a claim for pecuniary compensation in respect of damage suffered
as the result of the invasion of a legally protected interest. An interest is a claim or demand or
want or desire put forward by man in a civilized society.

The task of courts is first, to decide which interests should receive legal protection, and secondly,
to hold the balance between interests which have received protection. It is obvious that not all
objects of human desire can or should receive legal protection.

Tort Defined

A tort is a civil wrong for which the remedy is a common law action for unliquidated
(unspecified/unquantified) damages and which is not exclusively the breach of a contact or the
breach of a trust or other equitable obligation (See pages 14-15 of SALMOND AND HEUSTON
ON THE LAW OF TORTS, 26TH EDITION)

Tortuous Liability Defined

Tortuous liability arises from the breach of duty primarily fixed by law; this duty is towards persons
generally and its breach is redressable by an action for unliquidated damages. The person who
sustains injury or suffers pecuniary damage as the result of tortuous conduct is known as the
plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the
damage is known as the defendant or tortfeasor.

Graphically, tortuous liability is constituted as follows:

• Duty of care (owed to persons with whom there is no contractual liability) + negligent
performance of that duty - E.g. if a person fails to maintain his property and part of his
property falls off and injures another person, the property owner is liable for the damages
to that person, even though it may be a passerby with whom there are no contractual
obligations”.

Law of tort Distinguished from criminal law and law of contract

Tort versus Criminal Law

• A tort is a civil wrong. Proceedings in a tort are therefore civil, that is to say, the purpose
is to enforce some right claimed by the plaintiff as against the defendant.

• Criminal proceedings on the hand aim at achieving the objective of punishing the Accused
for some act of which s/he is accused.

• It is often the case that the same wrong is civil and criminal – capable of being made the
subject of proceedings of both kinds e.g. assault, libel, theft and malicious damage to
property. Speaking generally, in all such cases, the civil and criminal remedies are not
alternative but concurrently, each being independent of the other. The wrong doer may be
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 punished criminally by imprisonment or otherwise and also compelled in a civil action to
make compensation or restitution to the injured person e.g. a negligent driver who hits into
a person, can be prosecuted for a criminal offence of careless driving and be sued in a
civil matter (tort of negligence) for damages by a person whom he hit into.

Tort versus Law of Contract

• The distinction between tort and contract is that the duties in tort are primarily fixed by law,
while in the latter they are fixed by the parties themselves. Referring to a tort for example,
a person would say as follows: I am under a duty not to assault you, not to slander you,
not to trespass on your land, because the law says I am such under such a duty and not
because I have agreed to undertake such a duty.

• In tort, the duty is towards persons generally whereas in contract it is towards a specific
person or persons.

• The core of contract is the idea of enforcing promises whereas tort aims principally at the
prevention or compensation of harms.

GENERAL CONDITIONS OF LIABILITY IN TORT

Faulty and Non-Faulty Liability

What is a fault-based tort?

This question is largely concerned with the mental element of tort.

“It may not be sufficient for the claimant to demonstrate that the defendant’s act or omission
caused them damage in order to succeed in an action……it may also be necessary for the
claimant to show a particular state of mind on the part of the defendant. Where such a state of
mind needs to be proved, it is said to be a fault-based tort……. where no such state of mind needs
to be proved it is said to be a strict liability tort……”

With time, fault-based tort has shifted from being a state of mind to being a judicially set standard
of conduct which is objectively set. The law finds ‘fault’ in a failure to live up to an ideal standard
of conduct (negligence). Therefore, ‘fault’ is today not an essential element in tortuous liability.

The position of Intention, Malice and Motive in Tort

Intention in tort is generally irrelevant. A practical joker will be held liable in the tort of negligence
if he frightens another by a joke causing nervous shock to that person

See WILKISON V. DOWNTON (1897) 2QB 57

Facts:

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‘A’ by way of a practical joke, falsely told the plaintiff, a married woman, that her husband had met
with an accident whereby both his legs were broken. She believed this and so violently upset by
the consequent nervous shock that she had a serious illness. ‘A’ was held liable.

In tort, the term ‘malice’ has two meanings as follows:

• The intentional doing of some wrongful act without proper excuse; and

• To act with some collateral or improper motive

With respect to the latter the general principle is that malice is irrelevant in the law of tort
(Exceptions: torts of malicious prosecution and nuisance).

If one has a right to do something then his motive in doing it is irrelevant. The law in general
asks merely what the defendant has done, not why he did it. A good motive is no justification for
an act otherwise illegal (exceptions: defences of necessity, private defence for they depend to a
certain extent on a good motive on the part of the defendant), and a bad motive does not make
an act otherwise legal. The leading case here is

BRADFORD CORPORATION V. PICKLES [1895] AC 587.

Brief facts:

The defendant intentionally sank a shaft in his land, thereby spoiling the supply of underground
water. His sole motive in doing so was to coerce the plaintiffs to buy this land at his own price.
The court held that the fact that the defendant had a bad motive did not make an otherwise lawful
action unlawful.

There are two exceptions to the general principle that malice is irrelevant in tort i.e. torts where
malice is a significant ingredient. These are torts of malicious prosecution and nuisance. The case
in point is that of

CHRISTIE V. DAVEY [1893]1 CH316

Brief facts:

The Plaintiff and defendant lived in adjourning houses. The plaintiff gave music lessons and this
annoyed the defendant. In retaliation the defendant banged on the wall and shouted while the
lessons were in progress. The plaintiff was held to be entitled to an injunction because of the
defendant’s malicious behavior”

Damnum Sine Injuria

There are many forms of harm which the law takes no account. Damage so done and suffered is
called ‘damnum sine injuria’. For example, the harm done may be caused by some person who
is merely exercising his own rights; as in the case of loss inflicted on individual traders by
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competition, or when the damage is done by a man acting under necessity to prevent a greater
evil, or in the exercise of statutory authority. Or the courts may hold, on balancing the respective
interests of the parties that sound policy requires that the interest of the defendant should prevail
over those of the plaintiff e.g. BRADFORD CORPORATION V. PICKLES (1895) A.C. 587 where
the court was of the view that the natural to support of a land owner is subordinate to the natural
right of his neighbour to exploit his property by the extraction of underground water not percolating
through undefined channels, whether the defendant had acted intentionally or carelessly.

Other examples may be found in the law relating to damage caused by defamatory statements
made on a privileged occasion.

Injuria Sine Damno

Just as there are cases in which damage is not actionable as a tort (‘damnum sine injuria’), so
conversely there are cases in which behavior is actionable as a tort, although it has been the
cause of no damage at all (‘injuria sine damno’). Torts are of two kinds – namely, those which are
actionable per se, and those which are actionable only on proof of actual damage resulting from
them. Thus, the act of trespassing upon another’s land is actionable even though it has done the
plaintiff not the slightest harm.

Joint and Several Tortfeasors

Where two or more people by their independent breaches of duty to the plaintiff cause him to
suffer distinct injuries each one of them is liable for his damage. However, if two or more breaches
of duty by different persons cause the plaintiff to suffer a single injury, the plaintiff can sue all or
any one of them for his full loss. Thus, the proceedings shall be dealt with as a joint liability or
several (separate) liability. In ROOKE V. BOOL (1928) 2QB. 578, each of the two men searching
for a gas leak applied naked light to a gas pipe in turn and one of them causing an explosion.
They were held to be joint tortfeasors.

Persons are joint tortfeasors when they are responsible for one tort and they must have conceited
their efforts in the commission of that particular tort. Examples of joint tortfeasors are crooks
beating one-person, joint occupiers, vicarious liability (master and servant) or a principal allowing
his agent to commit a tort. Here, the following principles apply:

I. One tortfeasor has a right of contribution from any other tortfeasor who is or would if sued
have been, liable in respect of the same damage;

II. The Court awards whatever contribution is just and equitable, having regard to the extent
of the joint tortfeasor’s responsibility for the damage; this in the court’s discretion amount
to complete indemnity.

See: BROOKE V. BOOL (1928) 2QB. 578 above and, LISTER V. ROMFORD ICE AND
COLD STORAGE CO. [1957] A.C.555 H.L

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UNIT 2: NEGLIGENCE

INTRODUCTION

In the law of torts, negligence has two meanings: (1) an independent tort which we shall deal with
in this unit; and, (2) the mode of committing certain other torts e.g. nuisance, Rylands and
Fletcher, occupier’s liability, nervous shock, economic loss, breach of statutory duty, etc. the usual
or common ways in which negligence is committed is through inadvertence, carelessness, lack
of foresight and casual conduct.

Negligence is defined as:

• Breach of a legal duty to take care which results in damage to the plaintiff that is undesired
by the defendant (See: Winfield and Jolowicz on Tort).

 The omission to do something which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do, or doing something which
a prudent and reasonable man would not do (Per Alderson B in Blyth v. Birmingham
Water Works Co. (18560 11 Ex. 751 at 784

Negligence is conduct, not a state of mind – conduct which involves an unreasonably great risk
of causing damage. A negligent doer is he who does not sufficiently desire to avoid doing harm.
To succeed in an action for negligence the Plaintiff must prove:

(a) That the defendant was under a duty of care to him;

(b) That there has been a breach of that duty.

(c) That as a result the Plaintiff has suffered damage

The Duty of Care

There is no liability for negligence unless there is in the particular case a legal duty to take care,
and this duty must be one which is owed to the plaintiff himself and not to others. Duty to take
care is the responsibility that a person must exercise in order not to cause harm to the other.

The most elaborate definition of the concept of ‘duty of care’ and the ‘test for determining
the existence of the duty of care’ is aptly formulated by Lord Atkin in the celebrated case of
DONOGHUE V. STEVENSON (1932) A.C. 562, H.L. in effect , this case summarizes what the
law of tort is all about.

Facts:

The Appellant, a Shop Assistant, sought to recover from the Respondent, a water manufacturer,
on the ground of his alleged negligence, for the injurious effects alleged to have been produced
her by the presence of a snail in a bottle of ginger manufactured by the respondent and ordered
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for her in a shop by a friend of the Appellant. In consequence of her having part of the
contaminated contents of the bottle, the Appellant alleged that she contracted a serious illness.
The bottle was opaque.

Lord Atkin held as follows: “the rule that you are to love your neighbour becomes in law, you must
not injure your neighbour…you must then take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your neighbor-my neighbour are persons
who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which
are called in question”.

The manufacturers were liable to her in the tort for negligence.

Examples of duty of care:

• Persons using the highway owe the duty of care to others;

• Carriers of passengers and cargo owe a duty of care to passengers and cargo owners,
respectively.

• Trespassers and thieves are not owed a duty of care.

Concepts used to determine the existence of a Duty of Care

1. Foreseability

The defendant must have foreseen or was likely to have foreseen the likely result of his conduct.

In the case of BOURHILL V. YOUNG [1943] A.C. 92 H.L. a pregnant fishwife who had just gotten
off a tram heard an accident, afterwards saw blood on the road. She suffered shock and sued the
personal representatives of the motor-cyclist whose negligence caused the accident and who had
been killed. Held: no reasonable person would have foreseen the injury; she was outside the
ambit of duty and could therefore not recover.

In PALSGRAFT V. LONG ISLAND R.R. (1928) NY 339, two servants of the Defendants, while
helping a passenger to board a train, negligently dislodged a parcel carried by the passenger: the
parcel fell and its contents (assumed to be fireworks) exploded. The shock of the explosion
knocked over some scales many feet away, which struck the plaintiff, injuring her. It was held that
the plaintiff could not recover damages: “the conduct of the defendants’ guard, if a wrong in its
relation to the holder of the package, was not a wrong in its relation to the plaintiff standing far
away….Nothing in the situation gave notice (thus unforeseeable) that the falling package had in
it the potency of peril to persons thus removed…”

2. Reliance

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One, who had relied to his detriment upon a statement made to him by another, could recover in
negligence. In HEDLEY BYRNE & COMPANY v. HELLER AND PARTNERS LTD. (1964) A.C.
465), favorable references about E. Limited’s were given by E. Limited’s bankers to the Plaintiffs.
The references were given “without responsibility”. In reliance on the references the Plaintiffs
incurred expenditure on E. Limited’s behalf. E Limited went into liquidation and the Plaintiffs sued
the Bankers to recover their loss. It was held that a duty of care did exist, but the bankers were
not liable as they had expressly disclaimed responsibility.

The House of Lords ruled in this case that where there is sufficient ‘special relationship’ between
the maker of the statement and the person who is to rely on it, the former owes the latter a duty
of reasonable care in making that statement. A ‘special relationship’ exists when a person is “so
placed that others would reasonably rely upon his judgment or skill or upon his ability to make
careful inquiry

The concept of ‘reliance’ has significance in cases in which the parties are very close to a
contractual situation. It has no place in ordinary actions for personal injuries.

3. Proximity

The concept of ‘proximity’ is a description of circumstances from which, pragmatically, the courts
conclude that a duty of care exists. The concept does not necessarily require that the identity of
the plaintiff should be known at the time of the negligent act. Therefore, on the one hand,
geographical proximity between the parties, though an important factor is not sufficient of itself to
establish liability: e.g. a shopkeeper finds that a shop has been erected next door to him, the
second shopkeeper selling the same class of goods at half the price charged by the first. The
second man intends to inquire the first, but the latter has no cause of action, though the two are
physically neighbours. On the other hand, the absence of time or space will not prevent the
establishment of liability: a manufacturer of poisonous tinned food is liable although his product
has been shipped to the other side of the world and consumed months later.

4. ‘Just and Reasonable’

Lord Keith in PEABODY DONATION FUND v. PARKINSON (1895) A.C. 210, 240 said that in
determining the existence of a duty of care it was ‘material to take into account whether it is ‘just
and reasonable’ that one should be imposed. This concept has been used mainly to deny liability
in circumstances in which another defendant, or the plaintiff himself, is regarded as the more
appropriate bearer of the relevant loss or where alternative remedies exist with which a
negligence action could undesirably be in conflict or where the circumstance is an exception to
the ‘neighbour principle’ enunciated in the case of DONOUGHE v. STEPHENSON e.g. the
absence of any duty to prevent the subsidence of one’s neighbour’s premises by the abstraction
of underground water in undefined channels.

5. Policy

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Lord Keith has said that where ‘negligence is made out on the proximity basis’ it would only be in
‘rare cases’ that public policy would require that there should be no liability. Nevertheless, in such
cases public policy is still capable of constituting a separate and independent ground for holding
that the existence of liability in negligence should not be entertained. Thus, in HILL v. CHIEF
CONSTABLE OF WEST YORKSHIRE (1989) A.C. 53 it was held that it would be contrary to
public policy for negligence in the detection of crime to give rise to liability against the police.
Another example is the immunity of barrister from liability for negligence in the conduct of
proceedings in court.

Breach of Duty: Standard of Care and the ‘Reasonable Man’ Test

The duty to care is breached when the defendant fails to meet the required standard of recognized
behavior in human endeavour. The standard of duty to take care is that of an ordinary prudent
(reasonable) man.

In Goldman v. Hargrave (1967) 1AC 645, during a storm, a tall redgum tree on the Defendant’s
property was struck by lightning. The tree caught fire and the Defendant called in a tree feller to
cut it down. Instead of extinguishing the fire by using water on it, as a reasonable man would do,
the defendant allowed the fire to ‘burn itself out’. The fire revived with an increase in the wind and
spread to plaintiff’s property causing extensive damage. The Privy Council held that

The existence of a duty of care must be based on the knowledge of the hazard, the ability to
foresee the consequences or not checking or removing it and the ability to abet it. The degree of
care to be exercised will depend upon the circumstances of each case. A person dealing with
children is expected to exhibit a higher standard of care as opposed to that handling people of
mature. So, is a person handling blind people as opposed to one handling sighted people?

In assessing the standard of care, courts will also take the following into account:

• The likelihood of harm occurring see the case of Bolton V. Stone [1951] A.C. 850; the
plaintiff was injured by a cricket ball hit over the fence onto the road. It was held that the
cricket club was not liable as the possibility of injury was so slight.

• The seriousness of the consequences if care is not taken. In PARIS V. STEPNEY

BOROUGHCOUNCIL [1951] A.C. 367. A workman who had (as his employers knew) only
one good eye lost the sight of that eye from a splinter of metal. No goggles had been
supplied to the workman. It was held that the employer should have been exercised
greater care in his case than in that of a two eyed man.

• If a person has set himself up as having a particular skill he must exhibit as much skill as
is usually found in such person;

• The negligence of a Child is judged by the standard of care normally exhibited by a child
of that age.

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Liability for Omissions

1. Misfeasance; and

2. Nonfeasance

Misfeasance simply implies; harm caused by a positive act. Nonfeasance is omitting to act! The
bulk of our discussion reveals that negligence protected misfeasance.

Going back to the case of DONOGHUE V. STEVENSON, Lord Atkin referred to ‘acts or omissions
which you can reasonably foresee would be likely to injure your neighbor.

Perhaps the issue of omission liability- much as it may raise arguments of remoteness of damage
(at times) and breaking the chain of causation; claimants have succeeded to rope in third parties
who are not directly answerable to actions of negligence by the tortfeasor save for their omission.
The case in point is CARMARTHENSHIRE C.C. V. LEWIS (1955) A.C. 549. Where a child of four
strayed from school premises onto the highway; a lorry-driver swerved to avoid him and the driver
died. It was held that the school authorities were liable for their negligence in allowing the child to
stray.

Consider the case of CLAY V. A.J. CRUMP & SONS LIMITED (1964) 1 Q.B. 533

An Architect was engaged to supervise redevelopment of a site. A dangerous wall was left
standing, which collapsed and injured the Plaintiff. The Architect had said that the wall could stay
“if it was safe” but had never inspected it. It was held that the architect was liable, even though he
only omitted to act, as he should have foreseen the danger and inspected the wall.

Damage Occasioned by Breach of the Duty of Care

Harm occasioned by breach of duty of care owed to the plaintiff by the defendants is called
damage. It is the injurious effect of the defendant’s act on the plaintiff. It may be in form of bodily
harm (including nervous shock) or loss of profit.

PROVING NEGLIGENCE: RES IPSA LOQUITUR

The burden of proving negligence is on the plaintiff who alleges it. It is not for the doer to excuse
himself by proving that the accident was inevitable and due to no negligence on his part.

Res Ipsa Loquitur

It is not a nominate and neither is it a defence in negligence. It is a rule of evidence. It means the
thing speaks for itself.” Ordinarily, the burden of proving negligence is on the party alleging it.
However, the onus is on the defendant where an accident tells its own story.

The Elements of Res Ipsa Loquitur

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 • The accident must be such as could not in the ordinary course of things have
happened without negligence.

This means that a plaintiff in an action for negligence is only required to prove the
occurrence of the accident in which s/he suffered damage without having to prove
negligence itself.

• The thing that caused injury to him/her was under the control of the Defendant.
Having done so, the defendant then bears the evidential burden to rebut the allegation of
the plaintiff. The court applies a rule that in such cases the cause of the injury to the plaintiff
is solely within the knowledge of the defendant. The presumption is that there was
negligence on the part of the defendant. Sir William Erle C.J., in SCOTT V. LONDON AND
ST. KATHERINE DOCKS CO (1865 3H&C 596, 601 where six bags of sugar from a
warehouse fell onto a passer-by stated that “but where the thing is to be under the
management of the defendant or his servants, and the accident is such as in the ordinary
course of things does not happen if those who have the management use proper care, it
affords reasonable evidence, in the absence of explanation by the defendant, that the
accident arose form want of care”.

More illustrations:

• In BYRNE V. BOADLE (1863] 2 H & C 722, as the Plaintiff walked past the defendant’s
shop, a barrel of flour fell from a window above the shop and injured him.

• It was held that the occurrence was of itself evidence of negligence itself even in the
absence of an explanation by the defendant.

• In GEE V. METROPOLITAN RAIL WAY (1873) L.R. 8QB 161, the Plaintiff leaned against
the door of a train shortly after it left the station. The door opened and the plaintiff fell out.
It was held that as the door had recently been under the control of the defendants, there
was negligence.

• Contrast this case with that of EASON V. L.N.E.R (1944) KB 421 in which the Plaintiff, a
four-year-old child, fell out of the door of a moving train. At the time of the accident, the
train was 7 miles from its last stopping place. It was held that res ipsa loquitor wasn’t
applicable in these circumstances. The defendant did not have sufficient control over the
door at the time. Any passenger on the train could have interfered with the door.

Stones being found in a bun, slippery matter to be left lying on the floor of a shop

• There must be no explanation for the negligence

The facts do not “speak for themselves” where there is an explanation;

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See the case of BARKWAY V. SOUTH WALES TRANSPORT CO. LTD. [1950] 1 ALL E.R. 392
H.L. In this case, there was a great deal more known than that a vehicle mounted a pavement
and went over an embankment. For instance, a tyre was defective and there was evidence as to
speed. It was held that res ipsa loquitur did not apply and the known facts must be examined to
see whether negligence should be inferred.

17
UNIT 3: NEGLIGENCE AND NOVEL DUTY SITUATIONS

NERVOUS SHOCK (PSYCHIATRIC INJURY OR DAMAGE)

What is Nervous Shock?

This is a branch of negligence where a plaintiff claims to have suffered psychiatric or mental
illness as a result of the act of the defendant. The view that that the law takes cognizance only of
physical injury resulting from actual impact has been discarded, and now, an action will lie for
injury by shock sustained through the medium of the eye or the ear without direct impact. The
plaintiff must show that he suffered harm over ordinary grief and distress. Actions in negligence
based on nervous shock are proven by medical evidence.

Damages can be awarded if the shock is caused by reasonable fear for one's own safety or the
safety of others. Cases:

In the case of DULIEU V. WHITE [1901] 2 K.B. 669 on the aspect of one’s own safety: the
Defendants were held liable when their servant negligently drove a pair-horse van into the front
of a public-house, with resultant shock and illness to the plaintiff, who was standing behind the
bar.

The case of HAMBROOK V. STOKES [1925] 1 K.B. 141 is authority for the recovery of damages
for nervous shock resulting from the fear of another person’s safety. In this case, the defendant
left a lorry unattended to at the top of a hill with the break off. The lorry ran down the hill and
eventually crashed. The plaintiff’s wife had just left her children around a bend in the road. She
saw the lorry and feared for the safety of her children. She was told that a girl with glasses had
been injured and thinking it was her daughter she suffered nervous shock leading to her death.
Damages were awarded, although she was not within the foreseeable area of impact and the
shock was as a result of fear for another’s safety.

Damages will also be recoverable in the event that it was reasonably foreseeable that a normally
susceptible person would suffer shock by witnessing the accident in question. In the case of
OWENS V. LIVERPOOL CORPORATION (1939) 2 K.B. 394, a negligently driven tram collided
with a hearse and overturned the coffin. Four mourners following in a carriage suffered shock.
The affected mourners recovered damages.

CHADWICK V. BRITISH RAIL BOARD (1967) 1 W.L.R. 912. In this case, the Plaintiff went to
assist in rescue activities after a serious train crash. As a result of his experiences he became
psychoneurotic. It was held that the injury was foreseeable and the board was liable.

The other instance is where the Defendant intended to shock the Plaintiff: the case of WILKINSON
V. DOWNTON (1897) 2 Q.B. 57.

ECONOMIC LOSS CAUSED BY CARELESS STATEMENT (PURE ECONOMIC LOSS)

18
The concept of economic pure loss examines the economic loss unaccompanied by physical
damage. This clearly presents a huddle in the tort of negligence as the prime consideration for
this tort is to compensate people for loss caused by negligently inflicted physical damage. Such
losses are only recoverable in negligence in exceptional cases and not as general rule. Such
losses are sufficiently protected by the law of contract law and such torts as deceit.

NEGLIGENT MISSTATEMENT

Although the landmark case of HEDLEY BYRNE & CO. LIMITED V. HELLER & PARTNERS
LIMITED (1964)] A.C. 465 (see facts above) widened the tort of negligence to bring economic
loss within its scope, the extent of liability for such loss remains limited. The case is authority in
matters relating to negligent misstatements. Here, the House of Lords ruled that where there is
sufficient “special relationship” between the maker of the statement and the person who is to rely
on it and there had not been a disclaimer of responsibility by the maker, the maker of the
statement owes the person relying on the statement a duty of reasonable care in making that
statement.

Apart from this duty to take care, an innocent misstatement may give rise to an action for
damages:

1. Where there is a contractual duty to use care;

2. Where there is a fiduciary relationship between the parties and the case of NOCTON V.
LORD ASHBURTON (1914) A.C. 932 cements the proposition. A solicitor who had
induced his client honestly but negligently to release part of a mortgage security was held
liable to indemnify him.

19
UNIT 4: CAUSATION AND REMOTENESS OF DAMAGE

RELATIONSHIP BETWEEN CAUSATION AND REMOTENESS OF DAMAGE

In Introduction Lord Denning in LAMB V. LBC AND OTHERS v. SPARTAN LIMITED (1981) 2
ALLER 408 stated that “ the truth is that all these three; duty, remoteness and causation, are all
devices by which the courts limit the range of liability for negligence or nuisance…it is not every
consequence of a wrongful act which is the subject of compensation. The law has to draw a line
somewhere…sometimes it is done by limiting the range of the persons to whom duty is owed.
Sometimes it is done by saying that there is a break in the chain of causation. At the other time,
it is done by saying that the consequence is too remote to be a head of damage.

What is Causation?

Causation in this breath refers to the actions of the defendant which led to a breach of duty and
that the damage was not too remote. The plaintiff must establish an unbroken connection between
his damage and the defendant’s wrongful conduct. Lord Denning in ROE v. MINISTER (1954) 2
ALLER 131 9CA) stated that “starting with the proposition that a negligent person shall be liable,
within reason, for the consequences of his conduct, the extent of his liability is to be found by
asking the question: is the consequence fairly to be regarded within the risk created by the
negligence? If so, the negligent person is liable for it but otherwise, not.

What must be borne in mind is that in each case, it is whether the defendant has contributed to
the damage; his tort need not be the only cause of the injury.

The term causation can be looked at in twofold:

“causation in fact” and “causation in law”

Causation in fact considers the question of whether as a matter of fact the damage was caused
by the breach of duty – ‘is the defendant’s act the cause of the injury?’ Causation in law simply
means that the law stipulates what causation actions qualify to cause damage – was the plaintiff
proximate enough to the defendant’s act?’ The plaintiff must prove that the damage that occurred
to him was caused by the defendant who owed him a duty of care and that the damage was not
too remote to the wrongful act.

In BARNET v. CHELSEA (1969) 1Q.B. 428, the plaintiff’s husband went to a casualty department
of a hospital complaining that he had been vomiting. The doctor refused to examine him and he
was told to go home and consult his own doctor in the morning. The plaintiff’s husband was in
fact suffering from arsenical poisoning and he died some 5 hours later. The plaintiff sued the
hospital alleging that they had been negligent in the treatment given to her husband and that as
a result of their negligence her husband had died. It was held that the defendants were not liable
to the plaintiff as their negligence had not caused her husband’s death. Even if the doctor had
examined her husband and treated him her husband would still have died from the poisoning and
so the doctor’s negligence was not a cause of the husband’s death.
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NOVUS ACTUS INTERVENIENS

An event which occurs after the breach of duty, and which contributes to the claimant’s damage,
may break the chain of causation, so as to render the defendant not liable for any damage beyond
this point. Where this occurs, the event is known as novus actus interveniens.

Furthermore, damage may be too remote if the chain of causation is interrupted by an extraneous
act. The intervening act may be that of the Plaintiff himself or the third party. Case of HARNETT
V. BOND (1925) A.C. 669 The Plaintiff, when a lunatic on probation, visited the defendant, a
Commissioner in Lunacy, who, mistakenly thinking him to be still mad, detained him until he could
be taken back to asylum. It was nine years before he regained his freedom, and he sued the
defendant for false imprisonment. He recovered damages for the short period in Bond’s office but
the reminder was too remote as a new act, the exercise of the asylum owner’s discretion, had
intervened”.

But unlawful acts do not necessarily break the chain of causation. In the case of PIGNEY V.
POINTERS TRANSPORT SERVICES LTD [1957] 1 W.L.R. 1122, P received head injuries in an
accident caused by the defendants’ negligence. Injuries caused NEUROSIS and P committed
suicide. It was held that P’s widow could recover damages under the Fatal Accidents Act as P’s
suicide was directly traced to his injury.

REMOTENESS OF DAMAGE

Remoteness of damage is the extent to which a Defendant is liable for the consequences of his
wrongful act or omission. The position of the law is that a Plaintiff is not entitled to compensation
if the damage suffered is in the eyes of the law is too remote.

The Test APPLIED by the courts is that consequences are too remote if a reasonable man would
not have foreseen them.

Case:

• In OVERSEAS TANKSHIP (U.K) LTD V. MORTS DOCK & ENGINEERING CO. LTD
[1961] A.C. 388 (WAGON MOUND (No. 1)), the court sought to examine in detail to what
extent a defendant should be held liable for the damages, whether only those that were
reasonably foreseeable to happen due to the negligence of the defendant or also to hold
the defendant liable even for the damages that occurred consequent to the damage from
the foreseeable damage as the case was in Re POLEMIS (1921) 3KB 560.

In WAGON MOUND (No. 1), the Defendant carelessly discharged oil from a ship in
Sydney Harbour, and the oil floated on the surface of the water towards the plaintiff’s
wharf. The plaintiff’s servants, who were welding on the wharf, continued after being
advised (non-negligently) that it was safe to do so. Sparks from the welding equipment
first of all ignited cotton waste mixed up in the oil; then the oil itself caught fire. The plaintiff
sued for destruction of the wharf by fire.
21
 The court found the defendant not liable in negligence because it was not reasonably
foreseeable; damage by fire as the case was, was not foreseeable. The Privy Council
further declared that as far as the tort of negligence was concerned, Re POLEMIS was
no longer good law and liability would lie only for foreseeable damage of the kind or type
in fact suffered by the plaintiff.

In the earlier case of Re POLEMIS cited above, as a result of the negligence of stevedores,
who were servants of the defendants, a plank fell into a ship’s hold containing petrol in
metal containers. The impact of the plank as it hit the floor of the hold caused a spark, and
petrol vapour was ignited. The ship was destroyed. The arbitrators found that the spark
could not have been foreseen; though some damage was foreseeable from the impact.

The Court of Appeal unanimously held that the defendant was liable since the plaintiff’s
loss (the consequences of the defendant’s servants’ negligence) was a direct though not
reasonably foreseeable, result.

This decision suggests that provided some damage is foreseeable, liability lies for the
natural and direct consequences flowing from the breach of duty.

• The precise circumstances need not be foreseeable; but the defendant will be liable if the
consequences are within the general range which a reasonable man would foresee. The
case of BRADFORD V. ROBINSON RENTALS LTD [1967] 1 W.L.R.337 is authority. The
brief facts are that…B. was ordered by his employers to make a long journey in an
unheated van in a period of severe cold. He suffered frost bite as a result. It was held that
his employers were liable, even though frost-bite was an unusual condition, as some injury
from cold was foreseeable.

Note: Damage which is intended is never too remote, and there is an inference that a man
intends the natural and necessary consequences of his conduct.

Sensitive (Abnormal) Plaintiffs

The ‘egg-shell skull’ rule provides that the defendant must take his victim as he finds him. Once
a breach of duty has been established, the defendant must take his victim as he finds him. In
determining whether a duty exists, however, the law will not take account of abnormal
susceptibilities or infirmities in the person or property of the plaintiff which the defendant neither
knew nor could reasonably be taken to have foreseen. But if the defendant knows that the plaintiff
has some characteristic or incapacity which will increase the risk of harm, the court may hold that
the defendant owes a proportionately higher degree of care.

In SMITH v. LEECH BRIAN (1962) 2QB 405), the plaintiff was splashed and slightly burnt on the
lip by molten metal, due to the defendant’s negligence. Through the plaintiff’s predisposition to
cancer, the cancer became malignant and the plaintiff died. The defendant was found fully liable,
although a ‘normal’ person would not have suffered the cancer and death in those circumstances.

22
Defences to Negligence

Novus Actus interveniens (see notes above)

Volenti non fit injuria

No injury is done to one who consents e.g. inoculation, fair blow in a boxing match, injury arising
in the course of a sport. No one can enforce a tort which he has voluntarily waived. In
WOOLDRIDGE v. SUMMER (1963) 2Q.B. 43, the Court of Appeal held that spectators at games
and sporting events assume the risk of any harm caused by the players unless it results from
intentional or reckless conduct.

What are some of the features that qualifies ‘Volenti non fit injuria’ –

• the claimant must have acted voluntarily and had an opportunity to exercise a free choice;

• The defense can be pleaded where the parties agree to waive the negligent act. However,
the agreement must not be made under duress, mistake and or fraud.

• For the defense to succeed, the claimant must have the knowledge of the existence of the
risk and the nature of extent.

Contributory negligence

This is where the claimant's fault has contributed to their damage.

 In cases where both parties allege negligence, the test is: whose act really caused the
wrong? If it is only one of the parties, he bears the whole loss;

 But if both parties are at fault to a substantial extent, the total loss is shared between them
proportionately to their responsibility.

 There is authority for the view that causation as well as blameworthiness must be taken
into account in accessing responsibility.

 In the case of STAPLEY V. GYPSUM MINES LTD. [1953] A.C. 663. H.L. two workmen A
and B were ordered to bring down an unsafe roof and not to return to their normal work
until they had done so. They failed to bring down the roof and together decided to return
to work. The roof collapsed and A was killed. His widow sued the employer as being
responsible for B’s negligence. It was held that in view of A’s contributory negligence, she
could recover only 20 per cent!

For the defense to succeed,

• The defendant must prove that the claimant failed to take reasonable care and as a
consequence, that failure caused damage;
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 • The claimant's conduct must qualify to fall under the sphere of negligence. This is
considered objectively;

• Furthermore, for the defense to qualify, the claimant's fault must be the legal and factual
cause of the harm suffered.

Ex-turpi Causa non-oritur action (an action does not arise from a base cause)

It is a defence which provides that a plaintiff who suffers damage while participating in a criminal
activity cannot sue a fellow participant or the owner of the premises in negligence. E.g. a woman
cannot sue a health facility in negligence over botched illegal abortion. In RANGE v. MID-DOWNS
HEALTH AUTHORITY (1991) 1 ALLER 804, the allegation of negligence was that the defendant
had failed to observe a foetal abnormality during pregnancy and the plaintiff had denied the
possibility of an abortion. Such an action would have been illegal under the then existing laws. It
was held that there was no negligence on grounds of public policy. The court would not award
compensation where the plaintiff would have to have broken the law.

Remedies to the Tort of negligence

• damages

• Injunction. It is an order of the court of the court requiring the defendant to do something
or to refrain from doing something.

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UNIT 5: TRESPASS TO THE PERSON

ASSAULT AND BATTERY

Any direct intentional interference with the person of another is actionable in the absence of lawful
justification. It is now settled that if the interference is unintentional the injured party’s only cause
of action lies in negligence.

Trespass to person is actionable per se, i.e., without proof of special damage. The tort seeks
to protect personal integrity, which is regarded as being fundamental that it is protected even in
the absence of damage.

The tort of trespass to persons is a fault- based tort-it is therefore not actionable in the absence
of INTENTION.

See the case of FOWLER V. LANRING [1959] 1 Q.B. 426

Assault

Assault is an act of a defendant which causes the plaintiff to reasonably apprehend (fear) the
infliction of an immediate battery on him or her by the defendant. Fear or apprehension must be
proved. Examples of an assault is throwing water at a person which does not touch his body;
pointing a finger in anger to somebody or an act of the defendant which causes fear in the plaintiff.
In doing so, the defendant should not have physical contact with the plaintiff lest there be
committed a battery. Pointing a gun at a person in a threatening manner, even though to the
knowledge of the defendant, but not to the plaintiff, it is unloaded. If there is no reasonable fear
there is no assault: as for example, when a gun is pointed at a man behind his back.

The fear by the plaintiff must be immediate and the plaintiff must have reasonable belief that the
defendant has present ability to affect his purpose. It is not an assault for example where ‘A’ who
is in a train that is moving out of a station, shakes his fist at ‘B’ who is on the platform nor to shake
a fist at a man who by his distance from the scene of action is inaccessible to such violence. Also,
words may negative what would otherwise have been an assault. See the case of TURBERVILLE
V. SAVAGE [1669] 1 Mod Rep 3

Battery

Battery is the direct and intentional application of force to another without lawful justification. This
is so, however trivial the amount or nature of the force may be, and even though it does nor is
intended nor is likely or able to do any manner of harm. Force means any physical contact with
the body of the plaintiff. There is a battery when the defendant shoots the plaintiff from a distance
just as much as he strikes him with his fist, and probably the infliction of such things as heat or
light, if in such a degree as to cause injury or discomfort, will also suffice. Physical hurt is not
necessary. It is sufficient if the act is done with hostile intent.

25
The least touching of another in anger or without his consent or some other lawful reason or
spitting in a man’s face, an unwanted kiss, taking finger prints of a person without observing
statutory requirements, to pull a chair from under a person where s/he fall to the ground, to forcibly
take from a person some object which he holds or wears is battery. In PURSELL V. HORNE
91838) 3N AND P 564, it was held that to throw water at a person is an assault but if any drops
fall upon him, it is battery.

In COLE V. TURNER, 6 Mod. 149, Holt C.J. declared that:

• The least touching of another in anger is a battery.

• If two or more meet in a narrow passage, and without any violence or design of
harm, the one touches the other gently, it will be no battery.

• If any of them use violence against the other, in a rude inordinate manner, it is
battery; or any struggle about the passage, to that degree as may do hurt, is battery

The act by the defendant must be voluntary.

Threats of personal violence which are purely oral and do not lead to injury are not actionable.

It is certainly clear that consent is implied to such physical contacts as are a reasonably necessary
consequence of social life, e.g. touching another on the shoulder to attract his attention and in
crowded conditions there is a judicial tendency to widen this exception.

Fear in the sense of alarm is not an essential ingredient in the tort of battery: a blow from behind
is a battery.

The appropriate tort for personal injuries resulting from medical treatment is not battery but
negligence.

Assault and battery are crimes as well as torts.

Defences to assault and battery

• Lawful arrest. Where the defendant is carrying out a lawful arrest no tort is committed. The
precise procedure must be carried out in order to make an arrest. The arrested person must
be told the true grounds on which they are being arrested- exceptions are in the event where
the person to be arrested is resisting.

• Consent- some examples include boxing, sporting events, medical operations.

• Self- Defence- Self-defence is a defence where reasonable force is used in defence of the
claimant's person, property or another person. What amounts to self defence will be a question

26
 of fact in each case but the basic principle is that the force used must be reasonable in
proportion to the attack.

• Contributory negligence

• Prevention of trespass or ejection of a trespasser. It is lawful for any occupier of land, or

for any other person with the authority of the occupier, to use a reasonable degree of force in
order to prevent a trespasser from entering or his movements or to eject him after entry.

• Defendant acting in support of the law. Sometimes an assault or imprisonment may be

justified on the ground that the defendant was acting in support of the law. The onus of proving
legal justification lies on the defendant.

• Parental and other authority. A parent is not guilty of an assault if he physically interferes
with his or her child by way of reasonable restraint or chastisement, or therapeutic reasons.

• Inevitable accident. Inevitable accident provides a good excuse for a prima facie trespass
which is otherwise actionable. An inevitable accident has been defined as an event over which
the defendant had no control, and the effects of which would not have been avoided by the
exercise of the greatest care and skill.

FALSE IMPRISONMENT

False (erroneous or wrong) imprisonment consist in the act of arresting or imprisoning any person
without lawful justification, or otherwise preventing him from exercising his right of leaving the
place in which he is (SALMOND AND HEUSTON ON THE LAW OF TORTS, TWENTIETH
EDITION, page128). It may also be committed by continuing a lawful imprisonment longer than
is justifiable. The essence of the tort is the imprisonment of someone who is otherwise free and
not a convicted prisoner who is serving jail sentence. There is no need to prove actual damage
or bad faith.

Imprisonment in this tort does not necessarily mean actual imprisonment in the ordinary sense of
incarceration. It is enough that the plaintiff has been in any manner completely deprived of his
personal liberty, for any time however short. An unlawful arrest amounts to false imprisonment
and so does any act whereby a man is unlawfully prevented from leaving the place in which he
is. The mere fact of compelling a person not to move from a particular place and threatening
them with a gun is false imprisonment and can also be an assault.

Elements that constitute false imprisonment

• The restraint must be complete i.e. there must be on every side of him a boundary
drawn beyond which he cannot pass. In BIRD V. JONES [1845] 7 QB 742, part of a bridge
called Hammersmith was wrongfully fenced off to provide seats to watch a boat race. The
Plaintiff forced his way into the enclosure, but was prevented from going on further. As he

27
 was in no way prevented from returning, there was no imprisonment”. A partial restraint is
not false imprisonment;

• Knowledge of detention is not necessary. It is not essential that the plaintiff should be
aware of the fact of his imprisonment, provided it is a fact. In GRAINGER v. HILL it was
held that imprisonment is possible even if the claimant is too ill to move in the absence of
any restraint. In MERRING V. GRAHAME-WHITE AVIATION C. [1919] 122 L.T. 44, it was
held that a person detained on aerodrome premises in order to be interrogated was held
to be falsely imprisoned although he was not aware that he was not at liberty to leave.
Atkin L.J., said, “it appears to me that a person can be imprisoned while he is asleep, while
he is in state of drunkenness, while he is unconscious and while he is a lunatic. Of course,
the damages will be nominal.

The ground for this opinion is that although a person might not know he was imprisoned,
his captors might be boasting elsewhere that he was; and,

• The restraint must be unlawful.

• Means of escape. If a person has the means of escape, but does not know it, his detention
is nevertheless false unless any reasonable man would have realized that he had an
available outlet. Thus, if I pretend to turn the key of the door of a room in which you are
and take away the key, it would be unreasonable if you made no attempt to see whether
the door was in fact locked.

Defences

• Lawful arrest. Where the defendant is carrying out a lawful arrest no tort is committed. The
precise procedure must be carried out in order to make an arrest. The arrested person must
be told the true grounds on which they are being arrested- exceptions are in the event where
the person to be arrested is resisting.

• Prevention of trespass or ejection of a trespasser. It is lawful for any occupier of land, or

for any other person with the authority of the occupier, to use a reasonable degree of force in
order to prevent a trespasser from entering or his movements or to eject him after entry.

• Defendant acting in support of the law. Sometimes an assault or imprisonment may be

justified on the ground that the defendant was acting in support of the law. The onus of proving
legal justification lies on the defendant.

• Parental and other authority. A parent is not guilty of an assault if he physically interferes
with his or her child by way of reasonable restraint or chastisement, or therapeutic reasons.

• Inevitable accident. Inevitable accident provides a good excuse for a prima facie trespass
which is otherwise actionable. An inevitable accident has been defined as an event over which

28
 the defendant had no control, and the effects of which would not have been avoided by the
exercise of the greatest care and skill.

• Volenti non fit injuria is a defence as where a prison visitor agrees to be locked in a cell with
the prisoner.

MALICIOUS PROSECUTION/MALICIOUS ABUSE OF PROCESS

What is Malicious Prosecution?

This is the wrongful or improper setting in motion of criminal proceedings against the plaintiff with
the object of harassing or injuring his feelings. Further, the Court acquits the plaintiff.

It is an actionable wrong to institute maliciously and without reasonable and probable cause
criminal proceedings- a conviction in which might injure a person’s reputation, personal freedom
or property.

In order to succeed, the plaintiff must prove the following:

1. That he was prosecuted in a court of law and not merely questioned by the police;

2. That the proceedings terminated in his favor, whether by acquittal, discontinuance of the
prosecution, a successful appeal or otherwise;

3. That the Defendant acted without reasonable and probable cause, i.e. that he had no
honest belief, based on reasonable grounds, that the Plaintiff was guilty;

4. That s/he suffered damage as a result of the prosecution. Damage means, damage to the
plaintiff’s fame, his person or his property.

It is important to note that if reasonable suspicion against the plaintiff existed when he was
prosecuted his action will fail.

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UNIT 6: TRESSPASS TO LAND

What is Trespass?

Trespass is an unlawful inference with ones right to property

The tort of trespass to land (trespass quare clausum freigit) consists in the act of

1. Entering upon land in the possession of the plaintiff, or

2. Remaining upon such land, or

3. Placing or projecting any object upon it – in each case without lawful justification

Trespass to land, like all other forms of trespass, is actionable per se without any proof of damage
and independently of any intention to trespass (i.e. innocent straying or loss of way is no defence).
Every invasion of property be it ever so minute, is a trespass.

Entry upon the land is the most obvious instance but others are:

1. Throwing objects onto the land;

2. Driving nails into a wall;

3. Remaining after the determination of a license to enter; and

4. Using a right of entry for purposes other than that for which it was granted.

Trespass by Remaining on Land

Every person who has lawfully entered on land in the possession of another commits a trespass
if he remains there after his right of entry has ceased. To refuse to leave the plaintiff’s land or
vehicle is as much a trespass as to enter originally without a right. Thus, any person who is
present by the leave and licence of the occupier may, as a general rule, when a licence has been
terminated, be sued or ejected as a trespasser, if after request and after the lapse of a reasonable
time he fails to leave the premises. A reasonable degree of force may be used to control the
movements of a trespasser or to eject him.

Continuing Trespass

The continuance of a trespass gives a fresh cause of action from day to day and the party whose
right is infringed may bring successive actions so long as it continues. Trespass by way of
personal entry is a continuing injury, lasting as long as the personal presence of the wrong doer
and giving actions de die in diem so long as it lasts. The same characteristic belongs in law even
to those trespasses which consist in placing things upon the plaintiff’s land. Such a trespass

30
continues until it has been abated by the removal of the thing which is thus trespassing;
successive actions will lie from day to day until it is so removed.

In the case of HOLMES V. WILSON (1839) 10 A & E 503, trustees of a turnpike road erected
supporting structures on the Plaintiff’s land. The Plaintiff sued but settled for a sum in full
satisfaction. Later, the Plaintiff called on the Defendants to remove the buttress and sued them
when they refused. It was held that the Defendants were liable for the continuing trespass.

Actions Amounting to a Trespass

Trespass on the High Way

The owner of land adjoining a highway is the owner of the soil up to the middle. Improper use of
the highway is actionable by him as a trespass. In the case of HICKMAN V. MAISEY (1900) 1
Q.B. 752. the defendant walked to and from on the highway spying on racehorse trials taking
place on The Plaintiff’s land. His actions were held to be tantamount to trespass.

Trespass by Placing Things on Land

It is a trespass to place anything upon the plaintiff’s land or to cause any physical object or noxious
substance to cross the boundary of the plaintiff’s land, or even simply to come into physical
contact with the land, though there may be no crossing of the boundary: for example, to cause a
creeper to grow upon it, or to lean a ladder, planks or a shed, or to pile rubbish against it.

Trespass Beneath and Above the Surface

In general, he who owns or posses the surface of land owns or posses all the underlying strata
also. Any entry beneath the surface, therefore, at whatever depth, is an actionable trespass. It is
commonly said that the ownership and possession of land bring with them the ownership and
possession of the column of space above the surface ad infinitum. The landlord owns the land
from beneath the surface and above (‘cujus est solum, ejus est usque ad coelum et usque ad
inferos’ – ‘whose is the soil, his is also the heavens’).

Whilst entrance under the surface of another’s land is trespass, it is doubtful how far entry above
the land without actual contact is actionable. It would appear that whereas temporary intrusions
at a high level are not actionable, more permanent intrusions at a low level are not actionable.

In the case of KELSEN V. IMPERIAL TOBACCO CO. LIMITED (1957) 2 Q.B. 334, an advertising
sign projecting into airspace over single storey shop was held to be a trespass, not mere nuisance.

No action for trespass or nuisance lies by reason only of the flight of aircraft over any property at
a height above the ground, which having regard to all the circumstances of the case is reasonable
or in respect of noise or vibration from the aircraft on certain aerodromes, provided there is no
breach of statutory regulations.

31
However, the owner is liable without proof of negligence or intention for any material damage
caused to persons or property in taking off, landing or flight (subject to maximum scale except in
cases of willful misconduct).

Statutory provisions play a major role in this regard and thus, an affected party has a right of
indemnity against the person who caused the damage in certain cases.

Trespass Ab Initio

A person who enters upon the land of another with the owner or occupier’s permission is not a
trespasser but a licensee. However, a licensee who lawfully enters the land of another but
subsequently commits a misfeasance whilst on the premises is trespasser ab initio. In the case
of THE SIX CARPENTERS (1610) 8 Rep. 146 or 4 Cox Rep. 432, six carpenters went into an inn
in Cripple gate and, having consumed a meal of wine and bread, refused to pay for it. Their right
to enter was conferred by law, the place being an inn. It was held that they were not liable because
their act was nonfeasance, not a misfeasance. They complaint related to something they had not
done, i.e. they had not paid, and trespass ab initio (i.e. a trespass as if the original entry had been
wrongful) depends upon misfeasance.

An act of misfeasance by a person who has entered on land of another by authority of the law
revokes the authority, and that person becomes liable in trespass as if the original entry has been

Who can Sue and can be sued?

Under trespass, the person who can sue is the person in possession and can thus maintain an
action in trespass.

Therefore, an owner who is out of possession cannot sue, but if he subsequently recovers
possession, it relates back to the time the right of entry accrued, and he can sue for trespasses
committed in the interval. Further a landlord can sue in trespass only if he can prove more than a
mere trespass – viz actual harm done to the property, of such sort as to affect the value of his
reversionary interest in it.

Again, a person with defacto possession can maintain trespass against anyone except the person
with the right of entry or present possession. In the case of HEMMINGS V. STOKE POGES GOLF
CLUB (1920) 1 K.B. 720, the Plaintiff was employed by the club and occupied a cottage belonging
to it. Later, he left the Defendants’ service and was called upon to give possession. On refusal,
he and his property were ejected with no more force than necessary. It was held that the
Defendants were not liable for assault or trespass.

A person wrongfully retaining possession cannot be sued as a trespasser, but the person entitled
to possession may bring an action of ejectment and claim mesne profits, i.e., in effect, the loss
sustained by being kept out of possession.

32
Co-tenants or joint tenants cannot sue each other in trespass on the land they occupy because
both of them are entitled to possession of the land as a whole. An action by a co-tenant or joint
tenant is only possible if the defendant’s act is intended to completely oust the plaintiff from the
land or destroying or wasting of the common property.

Defences: Consent; Lawful Authority; Necessity

The following are the defenses that the Defendant may plead:

1. Authority of the law, e.g., a policeman preventing a breach of peace; a landlord detraining
for rent; a bailiff executing process. In the case of THOMAS V. SAWKINS [1935] 2 K.B.
249, a Police Constable insisted on being present as a private meeting where they had
reasonable grounds for thinking a breach of the peace might otherwise be committed. It
was held that no trespass was committed;

2. Abatement of a nuisance;

3. Retaking of goods;

4. Necessity. In the case of ESSO PETROLEUM CO. LTD v. SOUTHPORT CORPORATION

(1956) A.C. 218, the captain of an oil tanker lay the ship aground and in order to save the
ship and crew, large quantities of oil were discharged. The oil was carried by a tide onto
the shore. The court held that necessity was a defence to the claim in trespass and in
nuisance.

5. License, which is ‘that consent which, without passing any interest in the property to which
it relates, merely prevents the acts for which consent is given from being wrongful. After
revocation of a license the licensee becomes a trespasser, but he be allowed a reasonable
time to leave and remove his goods. A license coupled with an interest is irrevocable.

Remedies

1. Eject the trespasser, using no more force than necessary;

2. Re-enter his land. But he must do so peacefully, otherwise he commits a crime;

3. Obtain an injunction to restrain a continuing, or to forbid a threatened, trespass;

4. Sue for damages and mesne profits (i.e. action for damages in respect of all loss suffered
by the plaintiff during the period of his dispossession of the land);

5. Bring an action of ejectment or recovery of the land.

33
UNIT 7: OCCUPIER’S LIABILTY

DEFINITION OF OCCUPIER AND PREMISES

Who is an Occupier?

An occupier is the person in control of the property. Liability is generally based on occupancy or
control not on ownership. The person responsible for the condition of the premises is he who is
in actual occupation or possession of them for the time being, whether he is the owner of them or
not. For it is he who has the immediate supervision and control and the power of permitting or
prohibiting the entry of other persons.

Note that occupation may be shared between two or more people as when an occupier
engages a head contractor to do repairs or when an employer remains in occupation through his
employee, or other licensee. In such a case each occupier owes, or may owe, a separate duty to
the visitor, who may be a trespasser in relation to one of the occupiers, but not in relation to the
other.

In the case of WHEAT V. LACON & CO. LIMITED (1966) A.C. 552, L. Co. employed R. as licensee
of one of their inns, and permitted him to take guests in the upper part. W, a paying guest, fell
down an unlit staircase and was killed. It was held that R. and L. Co. were occupiers, but there
was no breach of duty by L. Co.

It may also be that A invites B onto the premises of C in pursuance of some common material
interest, he must either take reasonable care to ensure that C’s premises are reasonably safe for
the purpose in view or else warn B that he has not done so.

Occupiers and Premises

At common law, a single duty of care is owned by the occupier to all his lawful visitors.

What are premises under the sphere of occupiers’ liability?

• Real property and appliances or objects upon it of which the plaintiff has been invited
or allowed to make use e.g. land, buildings, grandstands, diving boards, electricity pylons
and scaffolds.

• Movables such as ships, buses, railway carriages, lifts and aero planes in so far as the
injury complained of has arisen from the dangerous structural condition of the conveyance.

Occupier’s Liability Act, Chapter 70 of the Laws of Zambia

This is an Act to amend the law as to the liability of occupiers and others for injury or damage
resulting to persons or goods lawfully on any land or other property from dangers due to the state

34
of the property or to things done or omitted to be done there; and to provide for matters incidental
to or connected therewith.

Liability to Trespassers and Non-Visitors

The Common Duty of Care

Section 3(1) of the Act provides that an occupier owes the same duty, the “common duty of care”
to all his visitors except in so far as he is free to and does, extend, restrict, modify or exclude his
duty to any visitor or victors by agreement or otherwise.

This duty of care is not owed to trespassers.

Under section 3(1) of the Act, the common duty of care is defined as a duty to take such care as
in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in
using the premises for the purposes for which he is invited or permitted by the occupier to be
there.

The common duty of care is also owed to persons visiting the premises under a contractual right
(section 4).

Area of Lawful Visit

The common duty of care is owed only to a visitor who is “using the premises for the purposes for
which he is invited or permitted by the occupier to be there”. If a visitor exceeds the area of
invitation or permission, he becomes a trespasser, and is owed a lesser duty. It is a question of
fact whether in all the circumstances of the case the occupier has taken reasonable steps to warn
his visitor of the existence and scope of the prohibited area.

According to section 3(4) (a), a warning of a danger cannot be relied on as absolving the occupier
from liability unless it is adequate in the circumstance. In the case of ROLES V. NATHAN (1963)
1 W.L.R 1117- Two chimney sweeps were killed by gas while cleaning a boiler. They had been
repeatedly warned of the risk involved by the occupier and his expert. It was held that the warnings
were enough to make the sweepers reasonably safe.

In the case of ASHDOWN V. SAMUEL WILLIAMS & SON LIMITED [1957] 1. Q.B. 409, C.A.
Defendants, occupiers of railway sidings, posted notices that all persons using right of way across
lines did so at their own risk. A, was knocked down by trucks shunted negligently by the
Defendants. It was held that A could not recover; she was a licensee, but notices were sufficient
to absolve the defendants from liability for negligence.

Children

The Occupiers’ Liability Act, section 3 (3) (a) provides that in assessing the common duty of care
an occupier must be prepared for children to be less careful than adults. So, a small child can

35
recover damages if he fells through a gap in some railings which would not have been dangerous
to an adult.

Discharge of Duty

The Act provides that the duty it imposes may be discharged, in an appropriate case, by taking
reasonable steps to warn of the danger or to discourage persons from incurring the risk.

Who is a Trespasser?

A trespasser is a person who enters another person’s premises without lawful authority to do so.

Traditionally, the view is that an occupier is not liable to a trespasser unless he acts willfully or
reckless. In the case of MOURTON V. POULTER [1930] 2 K.B. 183, the Defendant, who was
felling trees, warned trespassing children who were watching, but failed to repeat the warning
when a tree was about to fall. He was held liable.

A person would not be deemed to be a trespasser if permission for him to be on his land is implied.
Implied permission is a question of fact to be decided on the facts of the case. This frequently
occurs in situations where an occupier habitually and knowingly acquiesces in the trespass. Such
a person becomes a licensee and the occupier owes him a duty of care and protection.

The burden of proving the implied permission rests on the person claiming it.

Persons who call on the occupier for purposes of business interest to him have an implied
permission to enter even though their entry may be distasteful to the occupier.

LIABILITY TO VENDORS AND LESSORS

Vendor

A vendor is a seller of merchandise and or land.

Liability remains with the vendor until at such a time that title passes to the Purchaser.

Lessor

A lessor is usually one who transfers to another the exclusive occupation of premises for a definite
period. If that other does not obtain exclusive possession, he is only a licensee.

Duty of Lessor

Apart from any express or implied contract to that effect, at common law a landlord owes no duty
of care in his capacity as such, either towards his tenant or towards any other person who enters
on the premises during the tenancy, to take care that the premises are safe either at the

36
commencement of the tenancy or during its continuance. Such responsibility shifts onto the
tenant.

In what circumstances would a lessor be liable?

• Common places of building and or premises (they must be kept in repair. This could be
implied in la lease of a high-rise block of flats, for example);

• If the let premises is a furnished house, it is implied that the furniture are at the
commencement of the tenancy fit for immediate occupation or use; and

• If responsibility of preventing the risk in the premises is clearly apportioned to the Lessor

Defences to Occupiers’ Liability

• Contributory negligence

• Defendant was warned of danger

• The visitor was aware about the risk

Even if the occupier has not exempted himself from liability by means of “agreement or
otherwise under section 3(1) of the Act, he may still be exonerated from liability in whole
or in part by reason of the visitor’s knowledge of the danger.

• Exclusion clauses

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UNIT 8: NUISANCE

What is a nuisance?

A nuisance may be described as “unlawful interference with a person’s use of or enjoyment of

land, or of some right over or in connection with it unimpaired by noxious odors, noise, fumes,
smoke, steam and other interferences. Other examples of nuisances are roots of trees that
encroach on the plaintiff’s land and keeping a brothel in a residential area. Thus, nuisance can
be the following experiences:

1. Annoyance’

2. Irritation;

3. Pain;

4. Trouble, etc.

Nuisance is commonly a continuing wrong – that is to say, it consists in the establishment or

maintenance of some state of affairs which continuously or repeatedly causes the escape of
noxious things onto the plaintiff’s land. An escape of something on a single occasion would not
ordinarily be termed a nuisance.

Factors to Consider when Determining Whether or not the Tort of Nuisance has been
Committed

1. Incidence of the nuisance. The occurrence of the incidence must be frequent;

2. The duration of the incidence must be long or often and not a one-off incident;

3. The gravity of the wrongful act must be serious;

The locality of the nuisance will determine whether or not the act complained of is a nuisance
since what can be a nuisance in one locality may not be a nuisance in the other locality: e.g. in a
low residential area, holding kitchen parties may be frequently would amount to a nuisance as
opposed to high residential area because of the noise associated with kitchen parties.

What is Statutory Nuisance?

Statutory nuisance arises from legislative provisions that state the instances of a nuisance. In
short, the law indicates what’s a nuisance and when actionable. Every statutory nuisance is a
criminal offence created by statute.

Governments in most jurisdictions realize that legislation is vital to address public health concerns
and the environment in particular nuisances arising from factories, run down premises, noise from
bars, air etc.
38
The enforcement of the said legislation is largely affected by local authorities or statutory bodies
e.g. the Environmental Council of Zambia. Here, it is worthy to note that individual rights are
subordinated to community rights. For instance, in an industrial area, an individual property owner
(house owner) cannot bring all industries to a grinding halt for the sake of ensuring that he enjoys
his rights. The balance between individual and common rights is represented by the phrase ‘give
and take’. Thus, a nuisance which is for the common good of a community is not actionable.
Examples would include the buzzing noise of a power station, the fumes, noise or smoke from an
oil or copper extraction plant. This type of common good is called ‘utility of the defendant’s
conduct.’

The tort of nuisance requires that the injured individual must tolerate certain occasional wrongful
acts by his neighbours as a price to obtaining the same indulgence from them. Fancifulness and
fastidiousness are discouraged. The Latin maxim for this principle is ‘de minimis non curat lex’
meaning ‘the law does not concern itself with triffles’. This maxim is related to another maxim
which says that ‘sic utere tuo ut alienum non laedas’ which means that ‘use your property as not
to injure your neighbours’.

Public Nuisance

Public Nuisance is one which materially affects the reasonable comfort and convenience of a
certain class of society this type of nuisance is usually a criminal offence but an individual who
suffers special damage i.e. damage beyond that suffered by other members of the public may
bring a civil action.

In ATTORNEY-GENERAL v. P.Y.A. QUARRIES (1957) 2QB. 169, quarry operations were

conducted in such a way that local residents were affected by dust and vibrations from explosions.
The court defined public nuisance as: “one which materially affects the reasonable comfort and
convenience of life of a class of her majesty’s subjects. The Defendant’s activities were held to
amount to a public nuisance.

In the case of CAMPBELL v. PADDINGTON CORPORATION (1911) 1. K.B. 869, the Defendant’s
wrongfully erected a stand in the highway which prevented the Plaintiff from letting her premises
for the purpose of viewing King Edward VII’s funeral procession. She was successful in recovering
damages

Examples of Public Nuisance include

1. Obstructing the highway or making it dangerous for traffic;

2. Carrying on offensive trade;

3. Keeping a disorderly house or brothel in a residential area;

4. Polluting a stream or air;

39
 5. Organizing a festive of pop music which generates large-scale noise, traffic, and
apprehension.

Highways

Nuisance to the highway may be caused by-

• Obstruction caused by scaffolding, repairs and parking of a motor vehicle for

unreasonably long period of time. Reasonable uses are lawful unless lasting for an
excessive time. Thus, in the case of TREVETT V. LEE (1955) 1 W.L.R. 113 CA, half-inch
hosepipe laid across a road in daylight to bring water to the Defendants’ premises, was
held to be a reasonable use and therefore not a nuisance. So too, in the case of DWYER
V. MANSFIELD (1946) K.B. 437, where queues formed outside a shop, obstructing
neighboring premises, it was held that provided the shopkeeper carries on business in a
normal way and the queues are due to shortages, he would not be liable even if a nuisance
to neighbors were proved.

The aspect of dangerous activities amounting to a public nuisance can well be explained by an
example and case law: In the case of CASTLE V. ST. AUGUSTINE’S LINKS (1922) 38 T.L.R
615, a taxicab driver who lost an eye from a sliced golf ball recovered damages from the golf club;
the proximity of the hole to the road was a public nuisance.

 Projections. There is no liability for things naturally on land, e.g. trees unless their
dangerous condition was known or ought to have been known but there is probably strict
liability in respect of artificial projections. In QUINN V. SCOTT [1965] 1 W.L.R. 1004, a
diseased tree fell and caused an accident. The National Trust was held liable as it had
means of knowing that it was diseased. In the case of BRITISH ROAD SERVICES V.
SLATER [1964] 1. W.L.R498, an overhanging branch caused goods on a lorry to fall off,
and an accident ensued. The Land owner was held not liable, as he neither created the
nuisance nor could he have been presumed to know about it.

About aspects of strict liability, the case of TARRY V. ASHTON [1876] 1 Q.B.D. 314, provides
guidance. In the case, the Plaintiff was injured by the fall of a lamp projecting from the Defendant’s
premises over the highway. The Defendant was held liable for the negligence of an independent
contractor whom he had employed to repair it.

Private Nuisance

A private nuisance is the imposition of liability as the result of an act or omission whereby a person
is annoyed, prejudiced or disturbed in the enjoyment of land. The disturbance may take the form
of physical damage to land or, more usually, of the imposition of discomfort upon the occupier.
Typical situations which may give rise to liability involve incursions by water, smoke, smell, fumes,
gas, noise, heat, vibrations, electricity, animals and vegetation. Wrongful interference with the
exercise of an easement, profit, or other similar right affecting the use or enjoyment of land also
come within the rubric of private nuisance.
40
The judicial definition of a private nuisance is the “interference for a substantial length of time by
owners or occupiers of property with the use or enjoyment of neighboring property.

Examples of private nuisance:

a) Obstruction of rights of way;

b) Interference with water supply;

c) Interference with access of air through a defined channel;

d) Interruption of light; and

e) Interference with support to land

f) Interference with the enjoyment of land generally

The occupier of property is entitled to a certain measure of freedom from damage to his property
or interference with his health, comfort and convenient enjoyment of his property by the entry
upon or proximity to that property of noxious things such as smoke, smells, noise, vibration and
damp.

In the case of THOMPSON-SCHWAB V. COSTAKI (1956)] 1 W.L.R. 335 C.A A householder in a

good residential street complained that two women were in the habit of picking up men in
neighboring streets and bringing them to the house next door to his for purposes of prostitution.
It was held that such activities could constitute an actionable nuisance.

Nature of the Tort

He who causes a nuisance cannot avail himself of the defence that he is merely making a
reasonable use of his own property. No use of property is reasonable which causes substantial
discomfort to other persons or is a source of discomfort to other persons or is a source of damage
to their property. The wrong character of the defendant’s act is not to be tested as it is negligence,
by asking whether he could have foreseen the damage. The proper angle of approach is rather
from the stand point of the victim of the loss or inconvenience than from the stand point of the
alleged offender. Thus, in the case of CHRISTIE V. DAVEY (1893) 1 CH. 316, an injunction was
granted to restrain the Defendant from maliciously making a hullabaloo whenever the Plaintiff
played the piano.

In the case of personal discomfort, the test is: has the Plaintiff suffered material discomfort
according to plain and sober and simple notions, taking into account the locality?

Though, usually, to some extent ‘continuing’ the act complained of may be temporary or even
instantaneous, duration is relevant, first, in deciding whether the complainant is too trivial to be

41
actionable, and, secondly, in deciding the appropriate remedy. The granting of an injunction to
restrain a temporary nuisance is rare, since damages are usually adequate.

Malice will not convert a lawful act into an unlawful act. Remember the case of BRADFORD
CORPORATION V. PICKLES. But the purpose or motive is taken into account in deciding whether
or not a person is justified in injuring or disturbing his neighbour with noxious things. Sinking a
shaft is lawful; making noise is lawful only within bounds.

In the case of HOLLYWOOD SILVER FOX FARM LTD V. EMMETT [1936] 2 K.B. 468- the
Defendant, acting maliciously, fired guns close to the Plaintiff’s fox farm during the breeding time,
thereby causing considerable loss. He was held liable.

If damage was only suffered because either the Plaintiff or his property was abnormally sensitive,
the Defendant will not be liable.

Who can Sue?

Nuisance is an infringement of rights of enjoyment of property, i.e. an injury to the person in actual
occupation, and so, as a rule, he alone can sue.

Persons Liable

• Generally, the occupier of premises is liable for all nuisances which exist upon them during
the period of his occupancy. His duty is not merely to refrain from positive acts of
misfeasance which cause harm to his neighbours, but also to take care that such harm is
not caused by his omission or by third parties or by nature, and to abate it if it does.

The occupier is liable even for nuisance created by his independent contractor if he
engaged in work which there is a special danger of causing a nuisance, e.g. extensive
building operations. In the case of BOWER V. PEARE [1876] 1 Q.B.D.321- the Defendant
employed a builder to pull down his house. The builder undertook to support the Plaintiff’s
house which adjoined it, but it was nevertheless damaged. It was held that the Defendant
was liable for infringement of the Plaintiff’s right of support.

 The person who caused the nuisance is the person primarily liable. In the case of
THOMPSON V. GIBSON (1841) 7 M& W. 456. The builder of premises which obstructed
the public’s access to the Plaintiff’s market was liable though not in occupation and thus
powerless to abate the nuisance.

Defences

1. Consent;

2. Prescriptive right- this arises after twenty years, but time only begins to run when the act
in fact becomes a nuisance. Public nuisance cannot be justified by prescriptive right. In

42
 the case of STURGES V. BRIDGMAN (1879) 11 CH. D 852, the Defendant had used his
machinery for 20 years, but the vibrations caused by it only became a nuisance when the
Plaintiff put up a consulting room at the end of the garden near the noise. The Defendant
had no prescriptive right.

3. Statutory authority;

4. Contributory negligence

Remedies for Nuisance Action for Damages;

 Injunction; and

 Abatement –An occupier may without notice remove things which have escaped onto his
own land (e.g. branches). In an emergence, e.g. fire likely to spread – he may enter
another’s land to abate it: otherwise he should first give notice and a reasonable time to
permit the other occupier to abate it himself. Exercise of the right of abatement destroys
any right of action in respect of the nuisance,

Note: the tort of nuisance and that of trespass are closely related. The only distinction between
the two is that trespass to land is actionable per se whereas nuisance requires proof of damage.

43
UNIT 9: STRICT LIABILITY: RULE IN RYLANDS v. FLETCHER

STRICT LIABILITY

In the law of torts, strict liability means tortuous liability which is set upon the defendant without
need to prove intent, negligence or fault on their part. Liability is established provided that the
plaintiff proves that it was the defendant's object (thing) that caused him the damage.

DEFINITION OF THE RULE IN RYLANDS AND FLETCHER

They may be formulated as follows:

‘ A person who for his own purposes brings on his land 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’

Facts in the case of RYLANDS V. FLETCHER (1868) L.R. 3 H.L. 330, two defendants constructed
a reservoir upon their land, in order to supply water to their mill, and upon the site chosen for this
purpose there was a disused and filled-up shaft of an old coal mine, the passages of which
communicated with the adjoining mine of the plaintiff. Through the negligence of the contractors
or engineers by whom the work was done (and were not the employees of the defendants) this
fact was not discovered, and the danger caused by it was not guarded against. When the reservoir
was filled, the water escaped down the shaft and thence into the plaintiff’s mine, which it flooded,
causing damage.

The defendants (who had not themselves been negligent) were held liable.

The basis of liability is the artificial accumulation of things not in or on the land by the ordinary
course of nature. Thus, if rain falls on the defendant’s land, and the resultant water passes off by
natural gravitation on to the plaintiff’s premises, there is no liability under Rylands v. Fletcher.

Who may sue?

The right of action is not limited to the adjoining occupier. If I happen to be on somebody else’s
land at a time when a fire spreads to that land and my motor-car or property is destroyed, I have
just as much right as against the person who improperly allows the fire to escape from his land
as the owner of the land on which I happen to be. In CHARING CROSS ELECTRICITY SUPPLY
CO. V. HYDRAULIC POWER CO. [1914] 3 K.B. 772, a water company had statutory authority as
licensees to place water mains in a highway. Water escaped, damaging the electric cables of the
Plaintiff, who was there by a similar authority. It was held that the former were liable on the
principle of Ryland V. Fletcher.

Who may be Sued?

44
Primarily liability rests upon occupancy or control of premises, rather than on the fact of the
defendant has failed to control the thing that caused the mischief.

The plaintiff must prove that:

1. The defendant made a non-natural (i.e. extraordinary, exceptional or abnormal) use of his
land. It is a question of fact, subject to a ruling of the judge whether the particular object
can be dangerous or the particular use can be non-natural, and in deciding this question,
all the circumstances of the time and place and practice must be taken into consideration
so that what might be regarded as dangerous or non-natural may vary according to those
circumstances;

2. The defendant brought onto his land something which was likely to do mischief (i.e.
dangerous thing e.g. water, chemicals, fire, electricity, etc) if it escaped;

3. The substance in question escaped; and

4. Damage was caused to the plaintiff's property (or person) as a result of the escape."

Points to Consider

1. The duty is strict, the occupier being liable without proof of negligence or other fault;

2. He is liable for the default of the independent contractors;

3. He is not liable unless there is an “escape” of the dangerous/noxious thing. In the case of
READ V. J. LYONS & CO. LIMITED (1947) A.C. 156, the Respondents operated a
weapons factory. The Appellant, who was an inspector, suffered injuries in an explosion
in the shell-filling room. No negligence was shown and her action failed because there
had been no “escape” so Ryland v. Fletcher could not apply;

4. There is no liability for damage caused by the escape of things that are naturally on the land
unless the Defendant actively caused their escape.

5. It is uncertain whether the rule in Rylands v. Fletcher, applies to injuries to the person as well
as to property. English courts seem to favour the conclusion that damages for personal
injuries are not recoverable as was stated obiter in the case of READ v. LYONS cited above.
On the contrary, the High Court in Australia seem to favour the conclusion that damages for
personal injuries and damages for damage done to chattels may be recovered under the rule
in Rylands v. Fletcher by an occupier of premises. See the case of BENNING v. WONG (1969)
43 A.L.J.R. 467.

Defences or Exceptions to the Rule in Rylands v. Fletcher

45
1. Consent of the Plaintiff. The rule in Rylands v. Fletcher is not applicable to the escape
of things brought or kept upon his land by the defendant with the consent (express or
implied) of the plaintiff. In such cases the defendant is not liable except for negligence.
This is where the claimant expressly or impliedly consents to the presence of the thing on
the defendant’s property. The Defendant would not be liable if any damage results as a
consequence of the escape.

2. Act of Stranger. This is where the escape was caused by the wrongful act of a third
person over whom the defendant had no control. Thus, if a trespasser lights a fire on my
land, I am not liable if it burns my neighbour’s property, unless with knowledge or
presumed knowledge of its existence I have failed to extinguish it within a reasonable time.
So in BOX v. JUBB (1879) 4 Ex. D. 76, the defendants were held not responsible for
damage done through an overflow from their reservoir, when that overflow was caused by
an act of a third person who emptied his own reservoir into the stream which fed that of
the that of the defendant. And in RICKARDS V. LOTHIAN (1913) A.C. 263, the defendant
was not held liable for an escape of water to a lower floor of a building was caused by a
third party’s maliciously interference with the lavatory waste pipe.

But it should be noted that an occupier may be liable in negligence for acts of a stranger
even though he escapes liability under the rule in Rylands v. Fletcher. When the stranger’s
acts are of a kind which ought to have been anticipated and guarded against, the occupier
will be held liable for a failure to take reasonable care. Thus is NORTH-WESTERN
UTILITIES V. LONDON GUARANTEE AND ACCIDENT CO. LTD. (19360] A.C. 108, the
appellants, who were carrying gas at high pressure under the streets of Edmonton,
Alberta, were held liable when an hotel insured by the respondents was destroyed owing
to the escape of gas due to a leak caused by the operations of third persons, since those
operations were conspicuous and ought to have been foreseen and guarded against. But
“they left it all to chance”, and were thereby held liable in negligence.

3. Where the escape was caused by an act of God. This, in a nutshell is where the escape
was caused by natural forces which are beyond human foresight. In NICHOLAS V.
MARSLAND [1875-76] 2 EX. D, the Defendant was in possession of artificial pools formed
by damming a natural stream. The embankments and weirs were well and carefully
constructed and were adequate for all ordinary occasions. A very violent storm however
broke down the embankments, and the rush of water down the stream carried away certain
bridges, in respect of which damage the action was brought. It was held, notwithstanding
Rylands v. Fletcher, that the defendant was not liable, inasmuch as the jury had found that
there was no negligence on the part of anyone and that the accident was due directly to
the act of God.

4. Default of the Claimant. The rule in Rylands v. Fletcher is not applicable where the
escape was owing to the plaintiff’s default. Again, if the plaintiff is a trespasser on the land,
he cannot complain of the things he may find there, nor if he goes out of his way to
encounter danger can he blame the defendant for any harm he may suffer. So also, where
46
 the damage would not be have occurred but for some special or non-natural user of the
plaintiff’s property the defendant will not be liable under this rule.

Also note that where the claimant’s default’s amounts to contributory negligence, they will
have their damages reduced in proportion to their responsibility for the damage suffered.

5. Statutory Authority. That the Defendant had statutory authority to bring the thing on his
land and accumulate it. In GREEN v. CHELSEA WATERWORKS CO (1894) 70 L.T. 547,
a main belonging to the defendant company burst, and the water flooded the plaintiff’s
premises. It was held that the company, being authorized by Act of Parliament to lay the
main, and having a statutory duty to maintain a continuous supply of water, and having
been guilty of no negligence, was not liable in damages to the plaintiff.

Remedies

1. Damages; and

2. Injunction

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UNIT 10: LIABILITY FOR ANIMALS

COMMON LAW LIABILITY RELATING TO ANIMALS

Introduction

At common law, the responsibility of the owners of animals for damage done by them developed
along two main lines; one a branch of the law of trespass, and the other a branch of the which
imposes upon the owner of a dangerous animal or thing a duty to take measures to prevent it
from doing damage.

Strict Liability for Dangerous Animals

Certain animals are in their nature so dangerous to mankind that the keeper of them could not be
heard to say that he did not know of their character. Hence under this branch of the law there are
two classes of animals: (1) animals ferae naturae, e.g. a tiger or a lion, which are obviously of a
dangerous nature, although individual animals may more or less be tamed; (2) animals mansuete
naturae, e.g. a dog, a cow, or a horse, which have in individual cases given indications of the
development of a vicious or dangerous disposition.

Where the animal is ferae naturae, strict liability falls on its keeper to ensure that it does not cause
mischief. He who keeps a dangerous animal keeps it at his peril. The liability is for any damage
caused by the animal of a dangerous species: it is irrelevant that the particular animal is in fact
tame, or was acting out of fright rather than viciously. Thus, when damage is done by a dangerous
animal its keeper is liable without proof that the animal had a tendency to do such damage, or (if
the animal had such a tendency) that the defendant knew of it.

Liability for non-dangerous species

When damage is done by an animal of a non-dangerous species, the plaintiff must show that the
animal had certain abnormal characteristics (tendency contrary to the nature of animals of that
class), and that its keeper had knowledge, actual or constructive, of those characteristics. It is not
necessary to prove that the animal has on any previous occasion actually done the kind of harm
complained of; it is enough that it has sufficiently manifested a tendency to do or has done the
particular kind of damage complained of.

STATUTORY LIABILITY

The law has placed an obligation on the keepers of the animals. The keepers are to ensure that
the animals are well secured to avoid committing torts such as nuisance, negligence. In Zambia,
the legislation in perspective is the Public Pounds and Trespass Act chapter 253 of the Laws of
Zambia.

Liability for Injury to Livestock caused by Dogs

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Section 27 (2)(b) states that the owner or occupier of land from which a dog came is liable for any
damage it does to any game or animal in any fenced camp or enclosed place. According to section
2 of the Act, the term “animal” includes “cattle, horses, sheep, goats and pigs”.

Liability under this section is quite independent of the proof of knowledge or negligence on the
part of the keeper of the dog.

Cattle Trespass

The occupier of land is liable without proof of negligence for damage done by animals in his
possession which trespasses on the land of his neighbor

Defences

1. Contributory negligence and fault of the Plaintiff;

2. Plaintiff a trespasser

3. Act of God; and,

(a) Volenti non fit injuria. But an act of a stranger (e.g. in letting the animal loose or inciting it
to do mischief) is not a defence because the act of a third party is one of the circumstances
against which the person creating the risk should take precautions. Thus, in BEHRENS V.
BERTRAM MILLS CIRCUS [1957] 2 Q.B. 1, the keeper was leading circus elephants to
the ring. A small dog snapped at them. They turned and knocked the Plaintiff's booth, and
then were at once brought under control. Circus-owners were held liable. It was no
defence that the elephants acted out of fright, and not viciously; nor that the dogs had
been brought in by a stranger.

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UNIT 11: DEFAMATION

INTRODUCTION

Besides the protection of material interests such as bodily safety and property security, men have
also framed legal rules for the protection of non-material interests such as personality. These
rules protect the self-respect, reputation and privacy of the individual and fall within the tort of
defamation- a tort that consists in the publication of a false and defamatory statement concerning
another person without lawful justification.

Actions in defamation are personal and die with the plaintiff (‘actio personalis moriturcum
persona’), except where the defamation affects the plaintiff’s family. Similarly, because the
defamatory statement must refer to a specific plaintiff, it is not possible to defame a whole class
of people. Thus, said a judge in J’ANSON v. STUART; “if a man wrote that all lawyers were
thieves, no particular lawyer could sue unless there was something to point to the particular
individual”. But if a class is so small or so completely ascertainable that what is said of the class
is necessarily said of every member of it, then a member of the class can sue.

Some words are uttered with a hidden meaning and this hidden meaning is only known to the
person using them and his class or companions or neighbours. The hidden meaning is known as
‘innuendo’. In TOLLEY v. FRY AND SONS LTD (1931) A.C. 323, the plaintiff was a well-known
amateur golfer. The defendants published an advertisement without the plaintiff’s consent
containing his picture and underneath the following words: “the caddy to Tolley said, ‘oh sir, good
short, sir! That ball see it go, sir. My word, how it flies, like a cartet of fry’s, they’re handy they are
good, and priced low, sir”. The plaintiff brought an action for libel, alleging an innuendo. It was
said that a person reading the advertisement would assume that the plaintiff had been paid for
allowing the use of his name in it, and that in consequence he had prostituted his amateur status
as a golfer. It was held that the evidence showed that the advertisement was capable of this
construction and the plaintiff was awarded damages. An innuendo is proved by witnesses who
know the hidden meaning.

What is a Defamatory Statement?

A defamatory statement is one which has the tendency to injure the reputation of the person to
whom it refers; which tends to lower him in the estimation of right-thinking members of society
generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule,
fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking
member of society. Hence the test is an object one, and it is no defence to say that the statement
was not intended to be defamatory, or uttered by way of a joke.

A statement may be defamatory although no one to whom it is published believes it to be true. A

publication is not sufficient unless it is made to a person who understands the defamatory
significance of the statement, and who also understands that it refers to the plaintiff.

50
The test of the defamatory nature of a statement is its tendency to excite against the plaintiff the
adverse opinions or feelings of other persons. The typical form of defamation is an attack upon
the moral character of the plaintiff, attributing to him any form of disgraceful conduct, such as
crime, dishonesty, untruthfulness, ingratitude, or cruelty. Again, a statement is defamatory if it
amounts to a reflection upon the fitness or capacity of the plaintiff in his profession or trade, or in
any undertaking assumed by him.

What is not defamatory today may be defamatory tomorrow, or vice versa, for the political and
social ideas of the reasonable man alter with times. E.g. during the religious wars in the middle
ages it was defamatory in some European Countries to a man a Catholic. And during the first and
second world wars, it was defamatory to call someone a German. These terms are no longer
defamatory.

The wrong of defamation is of two kinds – namely, libel and slander

Distinction between Libel and Slander

1. Libel is a defamatory statement published in a permanent and visible form. Such as

writing, printing, pictures, effigies, films, broadcasting and probably tape recordings. The
reading out of a letter has been held to be Libel.

Slander is a defamatory statement which is spoken or conveyed in some transitory form

whether visible or audible, such as gestures or inarticulate but significant sounds. It is not
actionable without proof of special damage (i.e., actual damage which is not too remote.

2. Libel is both a tort and a criminal offence (see e.g. section 191 of the Penal Code, Cap
87 of the Laws of Zambia)

Slander is a civil injury only.

3. Libel is actionable per se.

Slander, is save in special cases, actionable only on proof of actual damage (i.e. the loss
of some material advantage apart from loss of reputation). Slander is actionable per se in the
following cases:

• The imputation of a criminal offence which is punishable by imprisonment;

• An imputation that the Plaintiff is suffering from an existing contagious disease

such a nature as to exclude him from society;

• An imputation against a female of unchastity or adultery; and

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 • Words spoken of the Plaintiff which are calculated to disparage him in any office,
profession, calling, trade or business held or carried on by him at the time of
publication

Injurious Falsehood

A defamatory statement must be distinguished from one which is merely injurious. Both are
falsehoods told by one man to the prejudice of another. However, an injurious statement is a
falsehood told about another which in no way affects his reputation but nevertheless in some
other manner causes loss to him. Thus, it is not defamatory to state that a certain tradesman has
ceased to carry out business; yet if this statement is willfully false, an action will lie for it.

Abuse

Mere insult or vulgar abuse does not amount to defamation whether it be written or spoken.

What must be Proved?

1. That the statement is defamatory:

2. That the statement referred to the plaintiff-

3. That the statement was published (i.e. made known) to some third person.

Points to Note

1. A postcard or telegram is presumed to be published if dispatched;

2. Every repetition of a libel is a fresh publication;

3. But a mere distributor e.g. a bookseller or a newsvendor is not liable unless he knew or
ought to have known of the libel

Defences

1. Justification

It is a good defense that the allegation is true in substance even if not in every detail. This is so
even though the defendant is proved to have been actuated by malicious and improper motives.
Honest belief in the truth of the statement is no defense. See the case of ALEXANDER V. N.E.
(1865) 6 B &S 340. An allegation that the Plaintiff had been convicted of travelling without a ticket
and fined, with three weeks imprisonment in default, was held justified by proof of the conviction
and the fine with two weeks imprisonment in default.

2. Fair Comment

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A fair comment on a matter which is of public interest (e.g. the administration of justice, the
conduct of the government and of public servants, the mode in which local authorities and other
public bodies perform their functions, the management of public institutions, or of a private
business of large extent) or is submitted to public criticism (e.g. books and every form of published
literature, works of art publicly exhibited, and public musical or dramatic performances) is not
actionable. This right is one of the aspects of the fundamental principle of freedom of expression,
and the courts are zealous to preserve it unimpaired. The defence of fair comment is a denial of
the libel.

The defence has three elements. It must be shown that the words complained of are (1) comment,
(2) fair comment, and (3) fair comment on a matter of public interest.

3. Comment

It is essential to the plea of fair comment that the defamatory matter must appear on the face of
it to be a comment and not a statement of fact. To come within a plea of fair comment the facts
on which the comment is based must be stated or referred to and the imputation must appear as
an expression of the defendant’s opinion on those facts. The facts which form the basis of the
comment must be in existence when the comment is made.

The comment must be on a matter of public interest or is submitted to public criticism e.g. the
official conduct of a politician, a work of art, and advertised goods. This is usually a question
decided by the Judge.

Fair Comment on Facts Truly Stated

Here there are three points to consider: (i) the facts must be truly stated; (ii) the comment must
be fair; (iii) imputation of corruption or dishonourable motives must be warranted by the facts’

(i) The Facts must be Truly Stated

The comment must not misstate facts: no comment can be fair which is built upon facts which are
invented or misstated. But not all the facts referred to need be proved, provided that the comment
is fair having regard to such facts as are provided. The facts must be stated or indicated in the
alleged libel.

(ii) The Comment Must be Fair

Malice negatives the fairness of the comment and the absence of genuine belief in the truth of
the comment is the strongest possible evidence of malice. It is also said that comment is to be
classed as unfair, even in the absence of dishonesty or malice, if the critic fails to show a certain
degree of moderation, judgment and competence.

An attack on a person’s moral character is not a fair comment. In MCQUIRE V. WESTERN

MORNING NEWS (1903) 2 K.B. 100, a critic described a play as “dull, vulgar and degrading.” the
53
Court said that it should not even have been left for them to decide. In CAMPBELL V.
SPOTTISWOODE([1863) 3 B&S 769- It was imputed that a scheme of the Plaintiff’s for
propagating the gospel in China was a mere pretext for puffing an obscure newspaper” it was
held the Defendant’s belief that this was true was no defense, since in fact it was not true. As it
attacked the Plaintiff’s character it was not a fair comment.

(iii) Imputation of Corrupt Motive

A man’s moral character is not a permissible subject of adverse comment, and this is so even
though the person attacked occupies some public position which makes his character a matter of
public interest. He who says or suggests that a person is dishonest, corrupt, immoral, untruthful,
inspired by base and sordid motive, must either justify his accusation by proving it to be true, or
show that the imputation is a correct inference from the facts commented on. In CAMPBELL v.
SPOTTISHWOODE (1863) 3B&S. 769, it was held actionable to suggest, however honestly, that
the editor of a religious magazine, in advocating a scheme for missions to the heathen, was in
reality an imposter inspired by motives of pecuniary gain.

The burden of proving that a comment is fair is on the defendant. He must establish that the facts
upon which the comment is based are true, and that the comment thereupon is warranted in the
sense that it is such as might be made by a reasonable man.

4. Privilege

A privilege statement may be defined as one which is made in such circumstances as to be

exempt from the rule that a man attacks the reputation of another at his own risk. The defendant
being privileged is either wholly free from responsibility or is liable only on proof that he was
animated by a malicious motive and not by any genuine intention to use his privilege for the
purpose for which the law gave it to him. It is not the statement but the occasion which is
privileged. If the occasion is privileged it is for some reason, and the defendant is only entitled to
the protection of the privilege if he uses the occasion for that reason.

Privilege is of two kinds, distinguished as absolute and qualified.

A. Qualified Privilege

There is qualified privilege for statements made;

1. In discharge of a duty, whether legal, social or moral, but only if made to a person with a
corresponding interest to receive it;

2. In the public interest to a person in authority e.g., a letter to an M.P. about some local
impropriety;

3. In fair and accurate reports of Parliamentary proceedings and public judicial proceedings;

54
 4. In extracts from Parliamentary Papers, whether printed or broadcast;

5. In professional communications between solicitor and client, the foundation of the

privilege is the importance in the interests of justice that such communications should be
free and unfettered by any fear of the consequences. The privilege is limited to the legal
profession and covers all professional communications passing for the purpose of getting
or giving professional advice, and exists even if counsel does not accept the retainer;

6. In protection of a lawful interest of the person making it e.g. if it is made in the defence of
his property or reputation. The other side must have a duty to protect that interest

The statement must be made honestly and without any indirect or improper motive

B. Absolute Privilege

A statement made in circumstances of absolute privilege is not actionable, however false and
malicious it is. Qualified privilege, however, is rebutted by proof of express malice, i.e. spite but
not negligence.

There is absolute privilege for statements made:

1. In Parliament by a member of the House

2. In Parliament Papers published by order of the House

3. In Judicial proceedings, by the judge, jury, parties, witnesses and advocates if made in
reference to the proceedings. The privilege extends to Tribunals which act judicially.

4. Fair, accurate, and contemporaneous reports of public judicial proceedings published in

newspapers.

5. Communications between husband and wife;

6. Certain statements made by one officer of the state to another in the course of official duty

5. Consent

It is a defence that the plaintiff has expressly or impliedly consented to the publication complained
of

6. Apology

The offer or the making of an apology is in general no defence to an action for libel, although it
may be given in evidence in mitigation of damages. In actions for libel contained in a public
newspaper or periodical the defendant may plead that it was inserted without actual malice and
without gross negligence and that before the commencement of the action or at the earliest
55
opportunity afterwards he inserted in the newspaper or periodical a full apology, or, if the
periodical is ordinarily published at intervals exceeding one week, had offered to publish such
apology in any newspaper or periodical selected by the plaintiff. Every such defence must be
accompanied by a payment of money into court by way of amends.

If the offer is accepted, no further proceedings can be taken against the person making the offer,
though the Court may order him to pay costs and expenses. If the offer is rejected, it is a defense
for the defendant to prove that the words were published innocently and that the offer was made
as soon as was practicable and has not been withdrawn. If the publisher was not the author of
the words, he must prove that they were written by the author without malice.

Remedies

1. Injunction. An application can be made to Court to restrain the Defendant and or his
Agents from continuing to publish or utter words that are defamatory to the Plaintiff. If
damages cannot atone the damage suffered by the Plaintiff, the Court will award an
injunction to the Plaintiff.

2. Damages. Damages should be compensatory and not punitive. They may be aggravated
e.g. by reason of the mental suffering caused by the defamation; or mitigated, e.g., by the
making of a full apology, the Plaintiff’s previous bad reputation or provocation by the
Defendant.

Note: acquaint yourself with the Defamation Act, Cap 68 of the Laws of Zambia.

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UNIT 12: TORTS RELATING TO GOODS

LIABILITY FOR DEFECTIVE PRODUCTS

Goods that a person sale to another should be of merchantable quality and be fit for the purpose
that they are procured for. If the goods are defective and fail to meet the expected standard, the
purchaser has a legal right to claim for damages and or replacement. The supplier is liable for
such defective products. However, prior information about the state of the goods before purchase
can waive the purchaser’s right to claim should the goods turn out to be defective. The statute
that supports the above propositions is the Sale of Goods Act 1883.

Goods are usually items that an individual can claim possession and ownership. Note though that
a person can possess goods but not own such goods!

The law of torts recognizes that a person who owns goods should be protected from abusive,
deprivation from his goods and thus be able to claim damages and other rights in the event that
such rights are unlawfully interfered with.

Among the torts that seek to protect a person’s right to such goods are those of trespass to goods
and conversion.

INTERFERENCE WITH GOODS: TORTS OF TRESPASS TO GOODS AND CONVERSION

Trespass to Goods

The tort of trespass consists in committing without lawful justification any act of direct physical
interference with goods in the possession of another. Thus, it is a trespass to take away goods or
to do willful damage to them.

The tort may be committed against an animal, e.g. it is a trespass to beat a dog or kill it by giving
it poisoned meat, to willfully frighten a horse so that it runs away, or to drive cattle out of a field in
which they lawfully are.

Trespass to goods is actionable per se without any proof of actual damage. Any unauthorized
touching or moving of an object is actionable at the suit of the possessor of it, even though no
harm ensues.

Trespass to goods like trespass to land, is essentially an injury to possession and not to
ownership. The plaintiff, therefore, must have been in actual possession at the time of the
interference complained of.

Conversion

A conversion is an act of willful interference without lawful justification, with any chattels in a
manner inconsistent with the right of another, whereby that other is deprived of the use and

57
possession of it. The tort of conversion is committed by – (1) wrongly taking another’s property;
(2) by wrongly detaining another another’s property, and (3) by wrongly disposing of another’s
property.

In OAKLEY V. LYSTER (1931)1 K.B. 148, the Plaintiff leased land and dumped material there.
The Defendant acquired freehold and wrongfully claimed that the material was his. He used some
of the material himself and his solicitors warned the Plaintiff not to enter on the land. The
Defendant was held liable for Conversion of the material.

Points to Note

• When things are found on land, and the true owner is untraceable, it has been suggested
that they vest in the possessor of the land, unless he clearly had no intention to control
things found there. But there are decisions to the contrary which are probably
irreconcilable. In SOUTH STAFFS WATER CO.V. SHARMAN (1896) 2 Q.B. 44, the
Plaintiffs employed the Defendant to clear a pool on their land. He found two gold rings in
the mud. It was held that the Plaintiffs were entitled to them.

• A person not entitled to immediate possession (e.g. a bailor of goods for a fixed term or a
purchaser of goods which are still subject to the vendor’s lien) cannot sue for conversion.
But the act of conversion itself will often give him the right to immediate possession. In
MULLINER V. FLORENCE (1878) 3 Q.B.D. 484, an innkeeper had a lien over the
Plaintiff’s goods for another debt. By selling them he destroyed the lien, and the Plaintiff
could therefore sue for conversion.

Defences to Trespass and Conversion

• Authority of the Law;

• Retaking the Goods;

• Licence; and

• Abatement of nuisance

Remedies

• Recaption: A person entitled to possession of goods of which he has been wrongfully

deprived may retake them, provided he uses no more than reasonable force. But it is
uncertain he may enter upon the land of an innocent third party to do so.

• Action for Damages: The Plaintiff is entitled to the full value of the chattel at the date of
the conversion, and to other damages if not too remote. In SOLLOWAY V. MCLAUGHLIN
(1938) A.C. 247, the plaintiff recovered at a higher rate for shares which had been
converted and had fallen in value since the date of conversion.
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UNIT 13: THE ECONOMIC TORTS

INTRODUCTION: Liability for statements

Liability for statements arises where the statement is untrue. Words, if untrue: (i) may injure a
person’s reputation if published to a third person i.e. defamation; (ii) may cause direct injury by
shock to the person to whom they are addressed e.g. WILKINSON v. DOWNTON; (iii) may cause
someone to act in reliance upon them and so cause loss or damage to someone else i.e. malicious
falsehood; and, (iv) may cause a person to rely and act upon them and suffer loss or damage as
a result i.e. deceit

DECEIT

The tort of deceit consists in the act of making a willfully false statement with intent that the plaintiff
shall act in reliance on it, and with the result that he does so act and suffers harm in consequence.

There are four main elements in this tort: (1) there must be a false representation of fact; (2) the
representation must be made with knowledge of its falsity, (3) it must be made with the intention
of that it should be acted on by the plaintiff, or by a class of persons which includes the plaintiff,
in the manner which resulted in damage to him; it must be proved that the plaintiff has acted upon
the false statement, and sustained damage by so doing.

The False Representation of Fact

Three points are to be noted. Firstly, the false statement may be made either by word or by
conduct. Secondly, the defendant must have made a positive false statement; a mere passive
non-disclosure of the truth, however deceptive in fact, does not amount to deceit in law in the
absence of a contractual duty to speak (as with the duty of disclosure required in a contract of
insurance) no such duty can arise in tort. The principle is subject to the following qualifications:

1. The non-disclosure of part of the truth may make the statement or the residue positively false.
It is permissible to tell the whole truth or to tell none of it, but it is not always possible to merely
tell part of it.

2. Active concealment of a fact is equivalent to a positive statement that the fact does not exist

3. If the defendant makes a statement which he believes to be true and he afterwards discovers
that it is false before it has been acted on by the plaintiff, or if he makes a statement which is
true when made but becomes false to his knowledge before it has been acted on, it is his duty
to disclose the truth.

4. In certain cases, there is a statutory duty of disclosure.

Thirdly, the misrepresentation must be a false statement of fact, and not a mere broken promise.

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Knowledge of the Statement’s Falsity

A false statement is not actionable in deceit unless it is willfully false. Thus, in DERRY v. PEEK
(1889) 14 App. Cas. 337, directors of a tramway company which had authority to use steam power
with the consent of the Board of Trade, believing, honestly but unreasonably, that this consent
would be given as a matter of course, issued a prospectus in which it was stated that they had
the right to use steam power without reference to any condition. In reliance on this statement the
plaintiff took shares in the company. The promoters were held not liable in damages, on the
ground that there was no proof that the error was fraudulent.

Intent that Statement shall be acted on

A false statement is not actionable, whatever damage may result from acting in reliance on it,
unless it was made with intent that the plaintiff should act in reliance on it in the manner in which
he did act. The only person entitled to rely on a statement and to act accordingly is he who is
intended to rely on it and to act upon it by the person making it.

Damage to the Plaintiff

No action will lie for a false statement unless the plaintiff did in fact rely and act upon it. If although
the plaintiff relied on the statement, he would have acted as he did even have the statement not
been made, he will have no cause of action.

Note that the statement need not have been made to the Plaintiff himself. See the case of
LANGRIDGE V. LEVY 91837] 2 M. & W. 519. The Defendant had falsely represented to the
Plaintiff’s father when selling him a gun that it was of good make and safe. It burst in the Plaintiff’s
hand. It was held that the Defendant was liable for deceit.

MALICIOUS FALSEHOOD/INJURIOUS FALSEHOOD: SLANDER OF TITLE

The wrong of injurious falsehood consists in false statements made to other persons concerning
the plaintiff whereby he suffers financial loss (or special damage) through the actions of those
others.

The tort of injurious falsehood is to be distinguished from and those of deceit and defamation.
The wrong of deceit consists in false statements made to the plaintiff himself whereby he is
induced to act to his own loss; in the tort of malicious falsehood the false statement is made to
other persons concerning the plaintiff.

In the wrong of defamation, the false and hurtful statement attacks the reputation of the plaintiff
but it is not in the wrong of injurious falsehood.

Malicious falsehood has a number of disadvantages over defamation for a claimant. Unlike
defamation, a claimant must prove malice, falsehood and actual or likely financial loss.

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The only advantage of malicious falsehood is that it can apply to any statement whereas in
defamation the statement must be defamatory in nature. This is the one area in which it would be
advisable to consider a malicious falsehood action in place of defamation. There may be many
statements which can cause financial loss but which are not defamatory. For example, to falsely
say of a solicitor that he has retired, cannot be defamatory but could be very damaging resulting
in loss of earnings. If the solicitor could show that the statement was made maliciously, he could
bring an action for malicious falsehood

In the wrong of malicious falsehood, it should be noted that no action lies for a false statement
unless it has been made maliciously: here, carelessness alone, however gross, does not suffice
to establish liability. Malice means some dishonest or otherwise improper motive. Thus, one who
has his application for employment refused as the result of an inaccurate (but not dishonest)
medical report has no remedy in this tort against the careless doctor.

An action for injurious falsehood lies in a variety of conduct e.g. in cases of slander of title
(i.e. where the defendant questions the plaintiff’s ownership of property), slander of goods
(where the defendant disparages the plaintiff’s title), passing off (where the defendant is selling
his goods or services under the pretence that they are those for another man) and in analogous
cases where damage has been willfully done without just cause or excuse.

Defences

1. That the statement was not addressed to the plaintiff and the defendant would not
therefore have expected the plaintiff to act on it.

2. That the defendant had no knowledge of the falsity of the statement.

Remedies

1. Injunction

2. Declaratory (of title) judgment as to the defendant’s title in an action for slander of title or
goods upon the plaintiff which the defendant has challenged.

3. Damages.

PASSING OFF

The legal and economic basis of this tort is to provide protection for the right of property which
exists in an established business, commercial or professional reputation or goodwill. The gist is
that the goods are in effect telling a falsehood about themselves which is calculated to mislead.
The law on this matter is designed to protect traders against that form of unfair competition which
consists in acquiring for oneself, by means of false or devices, the benefit of the reputation already
achieved by rival traders. Normally the defendant seeks to acquire this benefit by passing off his
goods as and for the goods of the plaintiff. The representation must be such as to cause confusion
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in the public mind between the plaintiff’s goods or business and that for the defendant. Examples
are: using a similar trading name, wrapping, identification mark, or description of goods.

In BOLLINGER V. COSTA BRAVA WINE CO. LIMITED [1960] CH 262. The Defendants,
producers of sparkling wine made in Spain, sold it as “Spanish Champagne.” it was held that the
description of ‘Champagne” referred exclusively to wines grown in the Champagne districts of
France and the Defendants were consequently guilty of Passing Off. It was further held that the
law governing trade competition is wide enough to prevent a person attaching to his product a
name or description with which it has no natural connection inorder to make use of the reputation
and goodwill gained by a product genuinely indicated by that name and description.

The wrong of passing off is not confined to cases of the sale of goods but assumes many forms,
of which the following are the most important:

1. A direct statement that the merchandise or business of the defendant is that of the plaintiff;

2. Trading under a name so closely resembling that of the plaintiff as to be mistaken for it by
the public;

3. Selling goods under a trade name already appropriated for goods of that kind by the
plaintiff, or under any name so similar thereto at to be mistaken for it;

4. Selling goods with the trade mark of the plaintiff or any deceptive imitation attached
thereto;

5. Imitating the appearance of the plaintiff’s goods so as to deceive the public

Remedies: (1) injunction (2) either damages or an account of profits at the plaintiff’s option.

INTERFERENCE WITH TRADE: CONSPIRACY, INTIMIDATION, INDUCING A BREACH OF

CONTRACT

1. INTERFERENCE WITH TRADE IN THE LIGHT OF INDUCING A BREACH OF

CONTRACT:

If a third party (A) internationally and without lawful justification induces B to break his contract
with C, C has a right of action against A for the damage which he suffers thereby.

It is no justification for the defendant to say that he had an honest doubt whether he was interfering
with the plaintiff’s contract, or that he had acted without malice, or in good faith, or that the breach
was really for the plaintiff’s benefit, if he had only properly understood the position. It is enough to
show that the defendant did an act which must damage the plaintiff – it need not be proved that
he intended it to do so. In EMERALD CONSTRUCTION CO. LIMITED V. LOWTHIAN [1966] 1
W.L.R 691: Union officials took action to hamper the work of sub-contractors and thus induce the
main contractors to terminate their contract. They did not know the terms of the contract but were

62
indifferent as to whether such termination would be lawful or unlawful. An injunction was granted
to restrain them.

Note also that the intentional use of unlawful means by A against B which precludes him from
entering into a contract with C will give C a right of action against A. See: TARLETON V.
MCGAWLEY: In order to prevent the Plaintiff trading with natives in Africa, the Defendant, a rival
trader, fired a cannon at a native canoe. It was held that the Defendant was liable for the damage
thereby suffered by the Plaintiff.

2. INTERFERENCE WITH TRADE IN THE LIGHT OF INTIMIDATION

The tort of intimidation is committed if A threatens to act unlawfully against B with the intention of
causing B to act to the detriment of C. For example, an action will lie at the suit of a trader who
has been compelled to discontinue his business by means of threats of personal violence made
against him by the defendant with that intention. Thus, in ROOKES V. BARNARD [1964] A.C.
1129, the threat was that strike action on the part of all AESD men employed by BOAC would
occur within three days unless the plaintiff was withdrawn from the design department. The
plaintiff was a unionist; although once he had been a shop steward in AESD, and the defendants
Barnard and Fistal were two fellow employees of BOAC, union members, and Silverthorne, the
local trade union official, who was not himself under a contract of employment with BOAC. The
threat made by the defendants was a wrongful act, being in breach of the no-strike agreement
made between BOAC and the union. So, there were threats of wrongful acts aimed and directed
at the plaintiff’s employment with the object and result of causing its termination, for BOAC, were
so impressed by the threat that they respondent to it by giving Rookes one week’s notice of
dismissal. On appeal, the House of Lords held that the defendants’ threats constituted the tort of
intimidation.

The threat complained of must be a threat to do an act which is in itself illegal. No threat to exercise
one’s legal rights can amount to a cause of action, even if made for the purpose of intimidation or
coercion, and even if inspired by malicious motives. If the party intimidated does not respond to
the threat, then the plaintiff cannot sue, because he has not been damaged. The damage to the
plaintiff must be linked to the coercion of the threatened party.

Courts treat economic loss in the same way as physical loss and is in general justifiable on the
ground that intimidation of any kind is highly objectionable and that there is no reason to limit the
unlawful acts which constitute the wrong to those which are criminal or tortuous as distinct from
those which are breaches of contract. Actionable threats are not limited to trade disputes.

The defence of justification is allowed to the tort of conspiracy and inducement of breach.

3. INTERFERENCE WITH TRADE IN THE LIGHT OF CONSPIRACY

When two or more persons, without lawful justification, combine for the purpose of willfully causing
damage to the Plaintiff, and actual damage results therefrom, they commit the tort of conspiracy.

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CROFTER HAND WOVEN HARRIS TWEED CO. LIMITED V. VEITCH [1942] A.C. 435: Trade
union officials, for the purpose of raising wages on the island of Lewis, persuaded the Dockers
not to handle mainland wool which, it was alleged, was undercutting that spun on the island. The
Dockers (without breaking any contract) complied. It was held that the union officials were not
liable in conspiracy for the damage caused to the mills using mainland wool, since their purpose
was to benefit members of their union.

Note that it is not a tort to threaten a lawful act, however, malicious the intention.

CONCLUSION

This unit has introduced you to economic torts namely deceit, malicious falsehood, passing off
and interference with trade.

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UNIT 14: VICARIOUS LIABILITY

INTRODUCTION

The term does not indicate a distinct tort, but rather a process by which one person can be held
liable for a tort committed by the other.

In order for the doctrine of vicarious liability to apply, the following conditions must co-exist:

1. The relationship of master and servant must exist between the defendant and the person
committing the wrong complained of;

2. The servant must in committing the wrong have been acting in the course of his
employment

BASIS AND REASONS FOR VICARIOUS LIABILITY

The fundamental basis and reasons for Vicarious Liability is that it provides an avenue for a
claimant to sue and be compensated for the any wrongful act/ omissions committed by the agents-
representing the interests of the Principal.

Vicarious liability also insulates the agent from liability in the event that the agent truthfully and
genuinely conducts his duties in the course of his work. Therefore:

The other rationale for this deviation is that the employer is in control of the behaviour of his
employee; that the employer must bear the burden of employing a negligent worker and that the
employer has greater ability to pay damages to the plaintiff.

WHO IS A SERVANT?

A servant is any person employed by another to do work for him on the terms that the servant is
to be subject to the control and direction of his employer in respect of the manner in which his
work is done.

Characteristics of a master/servant relationship:

• There is usually a continuous relationship and the master is generally liable for the
vicarious acts of the servant.

• The subject matter of the contract is to carry on continuous work;

• The servant is under the control of the master who directs as to how, when and where the
work is to be carried out. Note that where the servant is rent out by one employer to
another, the lending employer continues to retain the control over the worker if he
continues to pay him. This was the decision in the case of MERSEY DOCKS AND
HARBOUR BOARD v. COGGINS AND GRIFFITH (LIVERPOOL) LTD (1947) AC. Facts
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 of this case are that the appellant board owned a number of mobile cranes, each driven
by a skilled workman engaged and paid by them, which they were accustomed to let out
on hire. The respondents, master stevedores, hired one of these cranes so driven to load
a ship. The contract provided that the driver should be the servant of the hirers. In the
course of the loading a third party was injured through the driver’s negligence. At the time
of the accident the stevedores had the immediate direction and control of the operations
to be executed by the crane-driver e.g. the power to order him to pick up and move a
particular piece of cargo. But they had no power to manipulate the crane or its controls. It
was held that the appellant board as the driver’s general employers were responsible for
his negligence.

Additional questions that arise under such circumstances are ‘who can dismiss, how long
the alternative service lasts, what machinery is employed?

• The servant supplies labour only;

• The servant receives a fixed hourly/weekly/monthly wage;

• The servant does not supply materials for the job; and

• The servant does not provide equipment other than the small tools of trade.

Note that a superior servant is not the master of the inferiors who are under his control, and he is
not responsible for their torts.

EMPLOYER AND INDEPENDENT CONTRACTOR/ EMPLOYEES

An Independent Contractor, on the other hand, merely undertakes to produce a given result and
retains the control of his work. Therefore, the Employer is not liable for the actions/omissions of
the Independent Contractor save for the fact that as a general rule, a man is not liable for the acts
of an independent contractor. The following are the exceptions to this rule:

• When the contract is to do something unlawful;

• Where the Defendant has been negligent in the appointment of that contractor;

• Where the defendant has interfered with the mode of doing the work; and

• In cases of strict liability, i.e. certain statutory duties

Characteristic of an employer and Independent Contractor/Employees:

• A relationship organized around the completion of a once-off piece of work;

• The employer is generally not liable for the vicarious acts of independent contractors;

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 • Various methods of payment, including lump sum per job;

• The Independent Contractor owns her or his own business;

• The Independent Contractor has control over what is done, how it is done, when and
where it is done and whether the Contractor does it personally;

• The Independent Contractor is free to hire other people, on her or his own terms, to do
the work which has been agreed to be undertaken;

• The Independent Contractor can provide the same services to more than one person or
business at the same time;

• The Independent Contractor provides the materials for the job;

• The Independent Contractor provides equipment and machinery necessary for the job,
other than the small tools of the trade or equipment which in an overall context would not
be an indicator of a person in business on their own account; and

• The Independent Contractor controls the hours of work in fulfilling the job obligations.

DISTINCTION BETWEEN A SERVANT AND AN INDEPENDENT CONTRACTOR

1. A servant is an agent who works under the supervision and direction of his employer; an
independent contractor is one who is his own master.

2. A servant is a person employed to obey his employer’s orders from time to time; an
independent contractor is a person engaged to do certain work, but to exercise his own
discretion as to the mode and time of doing it – he is bound by his contract, but not by his
employer’s orders;

3. A servant is employed under a contract of service (i.e. a contract where the master can
not only order or require what is to be done but how it shall be done) whereas an
independent contractor is employed under a contract of services (i.e. a contract where the
master can only order or require what is to be done) . Other marks of a contract of service
are: (i) the master’s power of selection of his servant, (II) the payment of wages or other
remuneration, (iii) the master’s right of suspension or dismissal.

4. A servant is an integral part of the defendant’s business whereas an independent

contractor runs his own business.

THE COURSE OF EMPLOYMENT

An act is done in the course of a servant’s employment if it is of a class of act which he is expressly
or impliedly authorized to do.

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A master is not responsible for a wrongful act done by his servant unless it is done in the course
of his employment. It is deemed to be so done if it is either (1) a wrongful act authorized by the
master, or (2) a wrongful and unauthorized mode of doing some act authorized by the master. In
other words, a master is responsible not merely for what he authorizes his servant to do, but also
for the way in which he does it. If a servant does negligently that which he was authorized to do
carefully (E.g. in the case of CENTURY INSURANCE CO. V. NORTHERN IRELAND ROAD
TRANSPORT BOARD [1942] A.C. 509. a driver of a petrol lorry caused an explosion by lightening
a cigarette and throwing the match on the floor, while discharging his load. It was held that it was
a negligent method of carrying out an authorized act, (i.e. his work) and his employers were
accordingly liable.), or if he does fraudulently that which he was authorized to do honestly, or if
he does mistakenly that which he was authorized to correctly, his master will answer for that
negligence, fraud or mistake.

A master is not responsible for the negligence or other wrongful act of his servant simply because
it is committed at a time when the servant is engaged on his master’s business, or because it is
committed while using the tools or equipment provided by the master. It must be committed in the
course of that business, so as to form part of it, and not merely coincident in time with it.

Even express prohibition of the wrong act is no defence to the master at common law, if that act
was merely a mode of doing what the servant was employed to do. Thus, in LIMPUS v. LONDON
GENERAL OMNIBUS CO. (1862) 1 H. & C. 526, the defendant company was held liable for an
accident caused by the act of one of its drivers in drawing across the road so as to obstruct a rival
omnibus. It was held to be no defence that the company had issued specific instructions to its
drivers not to race with or obstruct other vehicles: the driver whose conduct was in question was
engaged to drive and the act which did the mischief was a negligent mod of driving for which his
employers must answer, irrespective of any authority or of any prohibition.

The liability of a master extends to fraud (See the case of LLYOD V. GRACE, SMITH & CO.
[1912] A.C. 716 in which a Solicitor’s managing clerk induced a client by fraud to transfer a
mortgage to him and absconded with the proceeds. The Solicitor was held liable, since the
damage was caused by an abuse of authority bestowed on the clerk), assault, arson or trespass
no less than to negligence.

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UNIT 15: DEATH IN RELATION TO TORT

DEATH AS EXTINGUISHING LIABILITY

The death of a person resulting from injuries tortuously inflicted may in exceptional cases
extinguish liability in tort or it may create fresh liabilities towards his dependents.

At common law, a right of action in tort was terminated by the death of either party (“actio
personalis moritur cum person”). Therefore, no one could sue for loss inflicted by another’s death.

DEATH AS CREATING LIABILITY:

Relationship between the Fatal Accidents Acts 1846 to 1908 of the United Kingdom and
the Law Reform (Miscellaneous Provisions) Act, Cap 74 of the Laws of Zambia.

The common law rule that no person has any legally protected interest in the life of another has
been to a great extent derogated from by statute, but it still remains the general principle.

In Zambia, actions arising out of fatal accidents are governed by the Fatal Accidents Acts 1846
to 1908 of the United Kingdom as read with sections 2 and 3 of the Law Reform (Miscellaneous
Provisions) Act, Cap 74 of the Laws of Zambia. The objective of these Acts is to provide
maintenance for those relatives who have been deprived of maintenance by the death. The Fatal
Accidents Acts 1846 to1908 and the Law Reform (Miscellaneous Provisions) Act, Cap 74 of the
Laws of Zambia having merely established exceptions to it.

Where there is a claim under the Fatal Accidents Act, 1846, section 2 of that Act allows the
dependants of the deceased person to recover by way of damages the value of their dependency,
which is limited to the loss of the pecuniary benefit arising from the relationship of the dependants
to the deceased, which they would have enjoyed had the deceased continued to live.

As regards to Cap 74 of the Laws of Zambia, section 2 that provides that on the death of any
person all causes of action subsisting against or vested in him shall survive against or for the
benefit of his estate except for causes of action for defamation or seduction or for inducing one
spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.

By section 2 (2 of the Act: where a cause of action survives for the benefit of the estate of a
deceased person, the recoverable damages-

(a) Shall not include any exemplary damages;

(b) In the case of a breach of promise to marry, shall be limited to such damage, if any, to the
estate of that person as flows from the breach of promise to marry;

(c) Where the death of that person has been caused by the act or omission which gave rise
to the cause of action, the recoverable damages are not affected by any loss or gain to his estate

69
consequent on his death, except that a sum in respect of funeral expenses may be included.

Note that no proceedings shall be maintainable in respect of a cause of action which has survived
against the estate of the deceased unless the proceedings were pending against the deceased
at the time of his death or the proceedings are taken not later than six months after his personal
representative took out representation.

The rights outlined above conferred by Cap 74 are in addition to and not in derogation of any
rights conferred on the dependants of deceased persons by the Fatal Accidents Acts, 1846 to
1908, of the United Kingdom.

Further, note that only one action is to be brought in the name of a personal representative for
actions surviving for the benefit of the deceased’s estate. The action must be brought within three
years after the date of death, or the date of the knowledge of the person for whose benefit the
action is brought, whichever is the later. The action is brought by the personal representative on
behalf of the relatives; but if there is no personal representative or if he does not commence an
action within six months, any relative entitled to the protection of the Acts may sue in his own
name on behalf of himself and the others.

There is no right of action unless the deceased himself could have sued had he been merely
injured by the defendant’s act and not killed.

Relatives are: husband, wife, children, grandchildren, parents, grandparents, brother, sisters,
aunts, uncles and their issue; the relationship may be traced through step-relatives, adoption or
illegitimacy, and relatives by marriage have the same rights as deceased’s own relatives.

If the deceased was guilty of contributory negligence the damages are reduced according to the
degree to which he was at fault.

Damages Recoverable: Claim for reasonable expectation for pecuniary benefit; future earnings
and funeral expenses;

Illustration:

BERNARD CHILUNDA v ZAKARIA CHINANZI (1979) Z.R. 195 (H.C.)

Facts:

The deceased, aged fifty-one years, died in a motor accident caused by the negligent driving of
the defendant. The plaintiff sued as a personal representative of the deceased's estate claiming
damages under the Fatal Accidents Acts 1846 to 1908, and the Law Reform (Miscellaneous
Provisions) Act 1967. He claimed that the deceased lost her normal expectation of a happy life
and her estate suffered loss and damage. In his evidence he stated that the deceased used to

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look after their children but after her death he had to employ a servant. There was no other
dependence proved.

Held:

(i) Under the Fatal Accidents Acts, damages are intended to compensate the dependants of
the deceased for the loss of the pecuniary benefits derived from the relationship subsisting
between them. They are not necessarily restricted to compensation for the loss of support,
whether in cash or in kind. Generally, the starting point for assessment of damages in cases of
this nature is the amount of dependency.

(ii) Under the Law Reform (Miscellaneous Provisions) Act 1967 damage are recoverable for
the benefit of the estate of the deceased.

(iv) In assessing damages for loss of expectation of life a very moderate figure
should be awarded.

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UNIT 16: REMEDIES AND DEFENCES

REMEDIES - INTRODUCTION

A remedy in tort is a relief which a court makes in favour of a plaintiff. There are various kinds of
remedies, of which the most common is the award of damages, and equitable remedies, such as
injunction. In many cases remedies are subject to statutory provisions. The significant difference
between common law and equitable remedies is that a successful plaintiff is entitled to common
law remedies as of right and a court has no discretion to deny him that remedy. On the other
hand, equitable remedies are in the discretion of the court which can deny a successful party his
remedy if, to put it simply, the court considers that due to his own behaviour in the case, he does
not deserve it.

DAMAGES

This relief is made in form of a monetary award to the plaintiff. The general objective of damages
is to compensate the plaintiff or to put him or her in a position in which they were before the
wrongful act was committed. No profit can be made under the guise of damages. Damages from
one particular cause must be recovered once and for all.

Kinds of Damages

Damages may be compensatory or non-compensatory. Compensatory damages are for loss of

earnings or loss of amenities. Here, the basic principle is that of restitutio in integrum, i.e., putting
the Plaintiff in the same position as if he had not suffered the wrong.

Non- compensatory damages include

(1) Nominal Damages

Nominal damages are an award, given in respect of torts actionable per se, of such a small
amount as to show that they are not intended to be compensation to the party recovering them
but to confirm the claim as legitimate. They are awarded if the successful Plaintiff has suffered no
actual loss or damage e.g. in actions for trespass to land.

(2) Contemptuous Damages

Contemptuous damages usually consist of an award of the smallest coin of the currency (e.g. one
ngwee). They are awarded when the court considers that, although the plaintiff has proved his
case, the action has been a waste of the court’s time and should never have been brought. They
must be distinguished from nominal damages where, although the award is small, the plaintiff was
perfectly justified in bringing the action.

(3) Exemplary damages or Punitive Damages

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Exemplary damages are sometimes called vindictive or punitive damages. They are an exception
to the rule that a plaintiff must not be awarded more than his actual loss. They are given not only
as a pecuniary loss sustained, but also as a form of punishment to the defendant, with a view to
preventing similar wrongs in the future by warning that they would result in heavy damages being
awarded. They are only awarded in where the conduct of the defendant is particularly
reprehensible and in contumelious disregard of the plaintiff’s rights e.g. newspaper libels (See the
case of ATTORNEY-GENERAL v. KAPWEPWE (1974) ZR 207 (SC) and cases of abuse of
powers by government officials (see the case of: MWABA (1974) ZR 177

Exemplary damages may only be awarded when specifically pleaded.

These are awarded to punish the defendant and to deter him from similar behavior in the future.

AGGRAVATED DAMAGES

These may be awarded where the conduct of the defendant is such that the injury suffered by the
plaintiff is more distressing than it might have been in less aggravated circumstances and
therefore the plaintiff requires more than the usual amount of damages to compensate him for the
distress and injured feelings caused by the way the tort was committed against him. However,
there is authority for the saying that awards under this head should be moderate.

Although similar to exemplary damages, these are not meant to be punitive in nature (although
they may be in effect) but compensatory and their award is not subject to the same restrictions
as exemplary damages.

SPECIAL DAMAGES

Special damages are those damages which a court would not presume to flow from the event
which forms the basis for the action and to be recoverable they must be specially pleaded and
specifically proved (see the case of MHANGO (1983) ZR 61 (SC) and ATTORNEY–GENERAL v.
MPUNDU (1984) ZR 6 (SC).

The opposite of special damages are general or ordinary damages which are such as the law will
presume to flow naturally from that which forms the subject matter of the action.

Thus, in a running down case, general damages may be recovered for injury and inconvenience
due to the defendant’s negligence; but hospital expenses, loss of wages, etc, must be claimed
specifically as special damages.

DAMAGES IN SPECIFIC ACTIONS

Personal Injuries

Special considerations apply to personal injury cases, where restitutio in integrum is impossible.
Damages may be awarded under the following heads:

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 i. Pain and suffering;

ii. Loss of amenity or loss of enjoyment of life. Damages may be awarded even if the Plaintiff
is unconscious of his loss;

iii. Loss of expectation of life;

iv. Loss of earnings, both actual and prospective. The fact that the Plaintiff would have paid
tax on his earnings must be taken into account.

(v) Medical expenses and other damage.

INJUNCTIONS

Injunctions are either prohibitory or mandatory. A prohibitory injunction is an order restraining the
defendant from committing or repeating an injurious act – for example, a trespass to land or the
erection of a building which would obstruct the plaintiff’s lights. A mandatory injunction is an order
requiring the defendant to do some positive act for the purpose of putting an end to a wrongful
state of things created by him – for example pulling down a building which he has already to the
obstruction of the plaintiff’s lights.

Injunctions whether prohibitory or mandatory may be interlocutory or perpetual. An interlocutory

(or interim) injunction is one issued provisionary before the hearing of an action, in order to prevent
the commission of or continuance of an alleged injury in the meantime, pending an inquiry into
the case and a final determination of the right of the plaintiff to a perpetual injunction.

Injunctions are discretionary remedies, i.e., they cannot be obtained as a matter of right. All
circumstances will be considered, in particular the nature and gravity of the injury and the conduct
of the parties. An injunction will not be granted if damages would be an appropriate remedy.

EXTRA JUDICIAL REMEDIES

It is not necessary in all cases that a man should resort to judicial proceedings in order to seek
protection or redress in respect of injuries threatened or committed against him. In many instances
the law grants him liberty to help himself by his own act or strength. Examples of extra judicial
remedies are ejecting a trespasser, abating (i.e. terminating by own act of) a nuisance, retaking
chattels, self-defense and distress damage pheasant (i.e. an occupier of land can lawfully seize
any chattels which are lawfully upon his land and have done or are doing damage there, and to
detain them until payment of compensation for the damage are done.

OTHER REMEDIES

In appropriate cases the Court may order the specific restitution of land or chattels of which the
Plaintiff has been dispossessed.

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The Plaintiff may obtain an order for an account of profits received by the Defendant in certain
cases, e.g. trespass to mines and quarries, passing off, and infringements of patents, etc.

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