LAW OF TORT

Introduction

Tort law is a branch of public/civil law that addresses, and provides remedies for, civil wrongs
not arising out of breach of trust or contractual obligations. A person who suffers legal damages
may be able to use tort law to receive compensation from someone who is legally responsible, or
"liable," for those injuries.

Tort law defines what constitutes a legal injury and establishes the circumstances under which
one person may be held liable for another's injury.

What is Tort?
A tort is a civil wrong other than a breach of contract whose remedy is a common law action for
damages or other relief. However not every wrong is a tort. Tortuous liability arises from the
breach of a duty primarily fixed by law unlike other civil wrongs such as breach of contract, where
the duty in question is fixed by the parties themselves. Thus, the duty not to defame, injure or
damage the property of any person is one fixed by the law and its breach may constitute a tort,
whereas the duty to supply goods under a contract of sale is a duty created by the parties themselves
in their contract. In tort, the duty is imposed on persons generally, i.e. on every individual and its
breach is redressable by an action for unliquidated damages, but in other cases the duty is imposed
only on the parties concerned, e.g. the duties created by a contract are imposed only on the parties
to the contract and on no one else. Similarly, the duty in tort is owed to every other person, unlike
in contract cases where one contracting party owes his contractual obligation to the other
contracting party and to no one else.

A tort, as such, differs from other civil wrongs in a number of respects. It is a common law wrong
which is usually remedied by an award of "Unliquidated Damage". Unliquidated damages are
those whose assessment is left for the determination of the court at its discretion. These are distinct
from liquidated damages which are fixed by the parties as in a contract. Certain other remedies are
also available in tort which will considered when the various torts are separately dealt with.
A person who commits a tort is called a tortfeasor. Where two or more persons commit a tort, they
are known as joint tortfeasors. They may be sued jointly, or any one of them may be sued for the
whole of the damage. In case of the joint tortfeasors, there is a right of contribution, under which
the court may apportion the damages between them in such a way as is just, having regard to their
respective degrees of blame.

Tort and crime distinguished

Tort Crime

-It is a civil wrong. Its main aim is the -It is a public wrong the action of which
compensation to the plaintiff for the loss or involves punishment.
injury caused by the defendant.
-Almost always the party suing is the state.
-The party suing is an individual or private
person.

NB; A single act may give rise to a tort and a crime

Tort and contract distinguished

TORT CONTRACT

The duty is fixed by law The duty is fixed by the parties

The duty is owed to persons generally The duty is owed to the parties to the contract

The remedies are few(restricted) The remedies are far much wider

Function of the Law of Torts

The primary function of the law of torts is to compensate persons injured by the civil wrongs of
others, by compelling the tortfeasor to pay for the damage occasioned by his tort. Besides this,
there are certain other functions and these include the following.
1. To Determine Rights Between Parties to a Dispute. A party to a dispute may bring an action
for a declaration of his rights; and once the court makes a declaration, the rights of the parties are
determined.

2. To Prevent a Continuance or Repetition of Harm. When the injury complained of is of a

continuous nature or likely to be repeated by the tortfeasor, the injured party may be granted an
injunction to prevent its continuance or repetition, e.g. in cases or trespass to land.

3. To Protect Certain Rights Recognized by Law. There are certain rights which every individual
is entitled to land which are recognized by law. These rights are protected by the law of torts e.g.
a person's reputation or right to good name is protected by the tort for negligence with imposes a
duty of care on every other person.

4. To Restore Property to its Rightful Owner. Where property is wrongly taken away from its
rightful owner or otherwise dealt with contrary to his rights, he may seek a restitution of the
property or its value since the wrongful act amounts to the tort of trespass to goods (or land).

Nature of tortuous liability

A tort is a civil wrong which is usually remedied by an award of unliquidated damages. Prof.
P.H. Winfield asserts that "tortuous liability arises from the breach of a duty primarily fixed by
law; such duty is towards person generally, and its breach is redressible by an action for
unliquidated damages".

Every person is under a duty to compensate for his wrongful acts which have resulted in injury to
another person. It is this duty to compensate that determines his liability in tort. Generally, the
plaintiff must prove that he has suffered harm and that there has in consequence been a violation
of his legal right. Some civil wrongs are actionable even if no damage is suffered e.g. trespass to
land. Whether the plaintiff has any remedy in some cases of tort depends on the following two
principles of general application:-
1.Damnum Sine Injuria:

Literally translated, this phrase means "Harm without legal injury." It refers to a circumstance
where a person has suffered actual harm without any violation of his legal right. A person
aggrieved in this way has no legal remedy.

Mogul Steamship Co. v. McGrefor, Gow& Co. (1982)

Certain ship-owners reduced their freight charges for the sole purpose of driving their rival out of
business. The plaintiff, who had thus been driven out of business, brought an action against the
ship-owners. Held: a trader ruined by the legitimate competition of his rivals could have no
redress in tort.

2.Injuria Sine Dumno:

This refers to a situation where a person suffers a violation of his right without any actual loss or
damage sustained by him. This is especially so in the case of torts which are actionable 'per' se'
(i.e. without proof of any damage) e.g. trespass to land, libel etc.

The Court can award the damages to the plaintiff in such case.

Ashby v. White, (1703)

In this case the defendant, a returning officer, wrongfully refused to register a properly tendered
vote of the plaintiff who was a legally qualified voter. In spite of this, the candidate for whom the
vote was tendered was elected, and no loss was suffered by the rejection of the vote. It was held
that the defendant was liable because he deprived the plaintiff of his legal right of registering his
vote.

Determination of tortuous liability

Tortuous liability can be also determined on the basis of the following principle

The Fault principle

Most torts are based on the fault principle. Under this principle, it is necessary to establish some
fault on the part of the wrongdoer before he can be made liable in tort. A person is said to be at
fault where he fails to live up to some ideal standard of conduct set by law. Three elements are
relevant in the determination of fault, and any one of them may be relied upon:-

i. Intention:

Where a person does a wrongful act desiring that its consequences should follow, he is said to
have intended it; and to that extent there is some amount of fault on his part.

ii. Recklessness:

An act is said to be done recklessly where it is done without caring whatever its consequences
might be. Recklessness, as such, constitutes fault on the part of the wrongdoer.

iii. Negligence:

A person is also at fault where he does a wrongful act negligently i.e. there the circumstances are
such that he ought to have for seen the consequences of his act and a voided it altogether.

Categories of Tort

There are three broad categories of tort, as follows:

1. Intentional Torts

2. Negligence

3. Strict Liability

1. Intentional:

An intentional tort is one where a defendant knows, or should know, that their actions would
bring harm to another person or the person’s property.

Example 1: If one person physically batters another person by punching him in the face. This is
an intentional tort because the individual intended her actions and the probable result.

Example 2: Trespassing onto personal property.

2. Unintentional/Negligence:

An unintentional tort is an action made by a party that accidentally causes damage to another
party or to their property. This means the defendant inflicted harm through negligence.

Negligence is conduct by an individual that drops below a reasonable standard of care and causes
harm to another person. Simply put, an individual has a duty to act reasonably when interacting
with others. When that individual fails to act reasonably and thereby causes harm to others, that
individual is negligent.

Example: A person who is driving while talking on phone or not paying close attention may be
negligent if her careless behavior results in an automobile accident.

3. Strict Liability

Strict liability subjects an individual to liability for activity that causes harm to another without
regard for her intent or the standard of care she shows in carrying out that activity. That is,
simply undertaking the activity that results in harm is sufficient to make the actor liable. The
injured party is not required to demonstrate the actor’s intent or the level of care they exercised
in undertaking the activity.

Example: A person who deals in very hazardous material, has a vicious or wild animal, or takes
part in the production or sale of an unreasonably dangerous product may be liable if her activity
causes injury to someone. It does not matter that the person did not intend to harm anyone or that
the person took extra precautions to not harm anyone. These activities alone are enough to
subject the person to liability.

General defenses to a tort

A person sued in tort has at his disposal certain defences, some of which are restricted to particular
torts (e.g. contributory negligence is a defence only to the tort of negligence), while other are of a
general nature. Specific defences are dealt with together with their respective torts. This section is
restricted to general defences.
The following general defences are available to a defendant in every action for tort where they are
appropriate:-
i. Volenti non Fit Injuria
 ii. Inevitable Accident
iii. Act of God
iv. Necessity
v. Self-defence
vi. Mistake.
vii. Statutory Authority
These are explained below
i. Volenti non fit injuria
This defense is available in circumstances where the plaintiff with full knowledge of the risk
voluntarily agrees to undertake such a risk. To succeed, the defendant must prove;
a) That the plaintiff had actual knowledge of nature and extent of the risk
b) That the plaintiff agreed to incur the risk voluntarily as was the case in Tugwell V Burnett.
Where 'volenti' is successfully pleaded its effect is to deny the plaintiff any remedy at all against
the defendant.
Volenti non fit injuria means no injury can be done to a willing person. For example, a football
player cannot complain for being injured while playing the game.
Khimji v. Tanga Mombasa Transport Co. Ltd. (1962).
The plaintiffs were the personal representatives of a deceased who met his death while traveling
as a passenger in the defendant's bus. The bus reached a place where the road was flooded and it
was risky to cross. The driver was reluctant to continue the journey but some of the passengers,
including the deceased, insisted that the journey should be continued. The driver eventually yielded
and continued with some of the passenger, including the deceased. The bus got drowned together
with all those aboard it. The deceased's dead body was found the following day. Held: The
plaintiffs' action against the defendants could not be maintained because the deceased knew the
risk involved and assumed it voluntarily and so the defence of volenti non fit injuria rightly applied.
Surgical operations
Consent to the surgical operation must be freely given. The surgeon is under an obligation to
inform the patient of all the risks involved and the patient must consent to taking such risk.
 ii. Inevitable Accident
An inevitable accident is one which cannot be prevented by the exercise of ordinary care, caution
and skill. It therefore occurs only where there is no negligence on the part of the person whose
act is complained against. Since the law of torts is generally based on the fault principle, and
since an inevitable accident does not impose fault on the part of the alleged wrongdoer, it follows
that an injury which has resulted from an inevitable accident is not actionable in tort.

Stanley v. Powell, (1891)

The plaintiff was employed to carry cartridges for a shooting party. A member of the party fired
at a pheasant but the bullet, after hitting a tree, rebounded into the plaintiff's eye. The plaintiff
sued. Held: the defendant was not liable as the plaintiff's injury resulted from an inevitable
accident.

iii. Act of God

An act of God (or vis major) is also an inevitable accident caused by natural forces unconnected
with human beings e.g. storm thunder etc. In this case also, any resultant injury is not attributable
to anyone's fault and, therefore, not actionable in tort.
Nichols v. Marsland (1876)
The defendant had a number of artificial lakes on his land. An unprecedented rain such as had
never been witnessed in living memory caused the banks of the lakes to burst and the escaping
water carried away four bridges belonging to the plaintiff's bridges were swept by act of God and
the defendant was not liable.

iv. Necessity
A person may sometimes find himself in a position whereby he is forced to interfere with rights
of another person so as to prevent harm to himself or his property. For instance, if he is about to
be shot he may feel constrained to use the person next to him as a shield against the gunman; or
being hungry he may steal food in order to survive; in the process taking the latter with him into
the pit. In all these cases he may seek to justify his action as a matter of necessity. It is based on
the maxim "saliuspopuli supreme lex" i.e. the welfare of the people is the supreme law.
All the cases decided on the defence of necessity point to the fact that this defence is difficult to
maintain and is very rarely allowed by court. The general rule is that no person should unduly
interfere with person or property of another. It is only in exceptional circumstances of an urgent
situation of imminent danger that this defence may be upheld:

Cope v. Sharpe (1912)

The defendant committed certain acts of trespass on the plaintiff's land in order to prevent fire
from spreading to his master's land. The fire never in fact caused the damage and would not have
done so even if the defendant had not taken the precautions he took. But the danger of the fire
spreading to the master's land was real and imminent. Held: The defendant was not liable as the
risk to his master's property was real and imminent and a reasonable person in his position would
have done what the defendant did.

In view of the difficulty posed by the above defence, it is not advisable for a defendant to rely
solely on it, especially where there are other defences. It is safer to plead it as an alternative to
another defence.

v. Self Defence
It is sometimes said that a person who is attacked does not owe his attacker a duty to escape.
Everyone whose person is threatened is entitled to defend himself; and he may do so by using
force. Force, however, may only be used where necessary, otherwise the person claiming for
defend himself might find himself liable to his alleged attacker. Thus, where a person is
assaulted i.e. threatened with immediate harm, but no harm is actually inflicted on him, he
should not himself use force in an effort to defend himself. Where force has actually been
applied (i.e. where there has been a battery the person attacked has a right to defend himself in
the same way, i.e. by applying force. But the force used in self-defence must be reasonable and
proportionate to that used in attacking him; otherwise if it is unreasonable or excessive in the
circumstances he will himself be liable to his attacker. Thus a person attacked with a fist, pocket
knife or small stick, or he may even use lesser force. But if in these circumstances he responds
with a panga or spear clearly the force used by him in self-defence will be unreasonable and
disproportionate and he will be liable to his attacker.

Cresswell v. Sirl, (1948)

A dog owned by plaintiff, C, attacked during the night some ewes lambs owned by S. The dog
had just stopped worrying the sheep and started towards S, who shot it when it was 40 yards
away. C sued for trespass to goods (dog). Held: S was justified in shooting the dog if (i) it was
actually attacking the sheep; or (ii) if left the dog would renew the attack on them, and shooting
was the only practicable and reasonable means of preventing revival. The onus on justifying the
trespass lay on the defendant.

An occupier of property may also defend his property where his interest therein is wrongfully
interfered with. Once again, reasonable force must be used in the defence of property. A
trespasser, for instance, may be lawfully ejected using reasonable force. The use of force which
is not called for in the circumstances entails legal liability on the part of the person purporting to
defend his property.

vi. Mistake
The general rule is that a mistake is no defence in tort, whether it is a mistake of law or of fact.
Mistake of fact may be relevant as a defence to any tort in some exceptional cases. This could
arise in cases of malicious prosecution, false imprisonment and deceit. For example, where a
police officer arrests a person about to commit a crime but the person arrested is innocent then
the police officer is not liable. In this case, the mistake is reasonable ground for the defence in
the tort. Mistake cannot be a defence in actions for conversion or defamation.

vii. Statutory authority

This defense may be relied upon by the defendant (usually the State or its agents) if the nuisance
is authorized by statute. The defendant has a complete defense only if he can prove that he acted
in accordance with the provisions of the Act. Whether the defense succeeds or not depends on the
interpretation of the Statute.

viii. Limitation of action

The statute of limitations provides a maximum period of time after a violation of civil or criminal
law can no longer be prosecuted in court. This statue prevents the prosecution of an individual for
violations committed many several years ago, which would constitute unfair punishment to
prosecute the individual in present time.

In Kenya a tort has 3 years limitation period. The statute of limitations is necessary as all cases
will degrade over time. This includes fading evidence, shoddy testimony from witnesses with poor
recollection, changing crime scenes and record destruction.

Capacity to sue or be sued in Tort:

The general rule is that any person may sue or be sued in tort. All persons are subject to the same
laws. However, some special rules apply in certain circumstances which either restrict, forbid or
qualify the right to sue or be sued. It means certain persons cannot sue, while some other persons
cannot be sued.

Capacity means the capacity of parties or persons to sue or to be sued in law of torts. The
capacity of various persons in the law of torts is explained as under:

1. The Government

The Government Proceedings Act (Cap 40) makes the Government subject to liabilities in tort as
if it were a private person of full age and capacity. Section 4 (1) of this Act provides that the
Government is liable.

a) in respect of torts committed by its servants or agents;

b) in respect of any breach of those duties which a person owes to his servants or agents at
common law by reason of being their employer; and
c) in respect of any breach of the duties attaching at common law to the ownership,
occupation, possession or control of property.

Limitations on the government's liability in tort

The government is only liable in respect of any act, neglect or default of any officer of
government. The act clearly states who is an officer.
"No proceeding shall lie against the government unless that officer has been directly of indirectly
appointed by the government and was at the material time paid in respect of his duties as an
officer of the government wholly not of the consolidated fund or was at the material time holding
an office in respect of which the minister for the time beings responsible for finance certifies that
the holder therefore would normally be so paid." Section 4 (6)

i. The government is not liable in respect of anything done or omitted to be done by any
person while discharging responsibilities of a judicial nature, or connected with the
execution of the judicial process (section 4 (5).
ii. In proceedings against the government, the court cannot grant an injunction or make an
order for specific performance, but may make a declaratory order section 16 (1).
iii. The government can refuse to produce documents if a minister is of the opinion that it is
prejudicial to the public service (evidence act (cap 80) section 131).
iv. No chain in tort can be brought against the government (or a local authority) after the end
of twelve months from the date on which the cause of action accrued. No proceeding can
be brought against the government until the expiry of 30 days after a notice, containing
prescribed particulars of the action has been served on the attorney general.

2. Minors

As a general rule minority is no defense in tort. Minors can sue and be sued in the same way as
any other person. A minor can however not sue or be sued in his own name but by his “next
friend” (guardian ad litem). Furthermore, the age of an infant may be relevant in some torts
where intentions, malice, or negligence of the wrongdoer are the main cause of the tort. In the
case of negligence, the infant may not have reached the stage of mental development where it
could be said that he should be found legally responsible for his negligent acts. A child may be
also guilty of negligence if old enough to take precautions for his own safety. However, it is
insufficient to show that he behaved in a way which would amount to negligence on the part of
the adult. It must be shown that his behavior was unreasonable for the child of his age.

Burnard v. Haggis, (1863)

A minor hired a horse for riding and was told by the owner not to jump over it. But he jumped
the horse and injured it. Held: The minor was liable for his tort which was of independent of the
contract.

Parents are not liable for the torts of their children, but in situations where it is established that
the child was under control of the parent the commission of the tort by the child will result to
liability of the parent.

Bebee v. Sales, (1916)

A parent permitted his son aged 15 to remain in possession of a shotgun, with which the son had
already caused harm and in respect of which complaints had been made. Held: the father was
liable for injury to another boy's eye.

3. Husband and Wife

The position of husbands and wives in tort is covered by two English statutes. These are: the
Married Women's Property Act 1882 and the Law Reform (Married Women and Tortfeasors)
Act, 1835. The former Act is a statute of general application is Kenya. The latter statute applies
in Kenya to the extent of paragraphs (b) and (c) of question 1.

A married woman is liable in tort and may sue or be sued in tort in the same way as though she
were a female sole (i.e. a single of unmarried woman). A wife can sue her husband in tort for the
protection of her own property.

4. The President:

The Constitution of Kenya (Section 143) provides that the President of Kenya is not "liable to
any proceedings whatsoever in any court." It means that no civil or criminal proceedings can be
instituted against the President while he is in office.

5. Heads of State and Diplomats:

The Heads of foreign states, diplomats of foreign missions and certain other persons connected
to them are immune from the jurisdiction of the local courts. Their immunity is provided by the
Vienna Convention of Diplomatic Relations, signed in 1961, the relevant articles of which are
given the force of law in Kenya by "The Privileges and Immunities Act (cap. 179)".

The accredited diplomats and their staff families enjoy immunity from the criminal and (subject
to specified exceptions) from the civil and administrative jurisdiction of the local courts. The
immunity does not extend to Kenyans who are employed by diplomatic missions.
Representatives of the United Nations Organization and its specialized agencies can also claim
diplomatic immunity. Although the diplomats and their staff cannot be sued under the law of tort
but it is always open to the Ministry of Foreign Affairs to declare a diplomat 'persona non grata',
thereby requiring his removal from Kenya. Immunity ceases when one engages in private and
commercial venture. Immunity can be waived leading to a person being charged.

6. Corporations

The corporations can sue and be sued in their own names. They are liable to actions in tort. A
corporation is also liable for torts committed by its servants and agents. But if a servant of a
corporation commits a tort which is 'ultra vires' (beyond powers) then the corporation is not
liable. Similarly, a corporation is not liable for some torts of personal nature e.g. personal
defamation, battery etc.

7. Bankrupts

May sue or be sued for torts committed.

8. Persons of Unsound Mind:

Liability depends on whether the person knew what he was doing when he committed the tort.
This can be proven by a psychiatrist.

In Morris v. Mardsen (1952), the defendant rented a room at a hotel. While there he attacked the
manager of the hotel. At that time he was suffering from a disease of the mind. It was established
that he knew the nature and quality of his act, but he did not know that it was wrong.

It was held that as the defendant knew that nature and quality of his act, he was liable in tort for
assault and battery. It was immaterial that he did not know what he was doing was wrong.
Unsoundness of mind is thus certainly not itself a ground of immunity from liability in tort, and
it is submitted that the true question in each case is whether the defendant was possessed of the
requisite state of mind for liability in the particular tort in which he is charged.

9. Aliens or Non-Citizens:

An alien is under no disability (immunity) and can sue and be sued. However an enemy alien
(whose state or sovereign is in war with the sovereign of the state in question) cannot sue.

10. Judicial officers:

Judicial officers are protected from civil liability for any act done or ordered by them in the
discharge of their judicial functions. Thus, where a judge or magistrate utters words which tend
to reflect on a person's reputation, or orders a party's property to be attached in satisfaction of a
judgment-debt, no action can respectively be brought against him for trespass. Besides judicial
officers, officers of the court are also protected against civil liability for acts done in pursuance
of a judicial order or warrant. This means that a court broker cannot be sued for attaching
property under a warrant dully issued by court, as long as he acts within the powers conferred on
him by the warrant. The protection to judicial officers and officer of court is afforded by the
Judicature Act (cap.8) Section 6.

TORT OF NEGLIGENCE
Negligence: is a failure to exercise the care that a reasonably prudent person would exercise in
like circumstances. The area of tort law known as negligence involves harm caused by carelessness,
not intentional harm.
Through civil litigation, if an injured person proves that another person acted negligently to cause
their injury, they can recover damages to compensate for their harm. Proving a case for negligence
can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental
well-being, financial loss.
Elements of negligence claims
A plaintiff will have to prove the presence of some elements to succeed in an action for tort of
negligence. An important concept related to element is that if a plaintiff fails to prove any one
element of his claim, he loses on the entire tort claim. The main elements that a plaintiff must
prove to succeed in negligence are:

i. Duty of care
The idea of a duty of care in the tort of negligence has developed through judges making decisions
in cases. This started in a negligence case of Donoghue v. Stevenson (1932) where the claimant
(Mrs. Donoghue) went to a cafe with a friend. The friend bought her a drink of ginger beer and ice
cream. The bottle of ginger beer had dark glass so that the content could not be seen. After drinking
some of it, Mrs Donoghue poured the rest out and then saw that it contained a dead (and
decomposing) snail. This appalled Mrs. Donoghue and she became ill as a result of the sight and
the ginger beer she had already drunk.

Mrs Dcnoghue had no direct claim against the manufacturer or the shopkeeper based on contract
because she didnot buy the ginger beer. Mrs. Donoghue's friend could claim against the cafe in
contract, but had not suffered any loss apart from the fact that she hadbought defective goods;, she
could get her money back, but nothing for Mrs. Donoghue's illness. Therefore, Mrs. Donoghue
claimed damages against the manufacturer, Stevenson. Her claim was for the resulting shock and
stomach upset, which she claimed was caused through drinking the ginger beer.

The court had to decide whether her claim against the manufacturer of the ginger beer could
succeed. This led to lord Atkin’s famous statement;

“The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour; and the lawyer's question, 'who is your neighbor, receives a restricted reply. You
must take reasonable care to avoid acts or omissions which you can reasonably foresee would
likely injure your neighbour. Who, then, in law is my neighbour? The answer seems to be:
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.”

Donoghue v Stevenson (I9J2) was the first successful attempt to set out a general principle
with respect to the concept ofthe duty of care The duty of care has since been further refined
through other case studies like Caparo v Dickman (1990) which introduced three part test as
follows. The general test for duty of care set in Caparo requires three elements to be demonstrated
as follows:
i. It was reasonably foreseeable that a person in the claimant’s position would be injured,
ii. There was sufficient proximity (closeness) between the parties,
iii. It is fair, just and reasonable to impose liability on the defendant

All parts of the test must be satisfied if there is to be a duty of care owed by the defendant to the
claimant each part must be explained and proved separately.

ii. Breach of Duty

Once a claimant has proved the duty of care is owed he must then show that the defendant breached
that duty. This is merely when the defendant falls below the standard of caring appropriate to the
duty. Breach of duly is measured objectively by the 'reasonable man test’. The reasonable man is
the ordinary person performing the particular task; he is expected to perform it reasonably
competently. Thus, when I am riding my bicycle, I am expected to be a reasonably competent
cyclist who can ride a bicycle. Therefore, a number of factors that can be considered to raise or
lower the standard. This is logical because a reasonable person will rightly take greater risks in an
emergency, and take more care when the risk of harm is greater. For a breach of duty to occur, the
court will take four factors into account:
The degree of riskinvolved: the greater the risk, the more the defendant has to take care. (Bolton v
Stone 1951).
The cost of precautions: the courts will see how high the risk is involved, and then take into account
the expense of taking precautions to prevent that risk (Bolton v Stone and Latimer vs AEC)
Potential seriousness of injures:so if there is a very high risk of serious injury, the more the
defendant needs to be very careful (Paris v Stepney B.C. 1951)
The importance of the activity: in an emergency, sometimes it is not possible to reflect, think of a
possible risk (Marshall v Osmand 1982)

Standard for experts - where the defendant has some expertise, for example, he is a doctor
carrying out medical treatment, then the standard of care is that which would normally he expected
from a doctor. This may be higher than that expected of a nurse of a clinical officer.

In some situations, it is difficult to know exactly what happened, although it is found obvious that
the defendant was in these situations negligent through a rule called res ipsa loquitur, which means
(things speak for themselves) was developed by judges. It has to be shown that:
The defendant was in control of the situation (causing injury).
The injury was more likely than not to be caused by negligence.

If the claimant proves these two things then the defendant has to prove that he was not negligent.
This rule was shown in the case of Scott v London and St. Katherine Docks (1865) where the
claimant was hit by six bags of sugar which fell from the defendant's warehouse. The claimant
could not say why the bags had fallen but ruled that the facts spoke for themselves and it was up
to the defendant to prove that he was not negligent.

Damage Caused
Having established a duty of care, and a breach of that duty, the claimant will then need to show
that damage has been caused to them, and that loss is not too remote. A person will only be liable
for damage, which they have actually caused the victim. The some rules apply to damage to
property.

Factual causation (Direct Cause)

Would the damage have happened had it not been for the breach of duty? This can be seen in
Barnet vs Chelsea and Kensington Hospitals (1969) where three night-watchmen went to
Accident & Emergency unit complaining of sickness after drinking tea made by a fourth man. A
nurse telephoned the doctor on duty who did not come to examine the men but instead sent the men
home and told them to go and see their own doctors in the morning. On returning home, one of the
men died a few hours later from poisoning. His widow sued the hospital claiming that the doctor
was negligent in not examining her husband. Evidence showed that by the time the husband had
called in to the hospital it was already too late to save his life. This meant that his death was not a
result of the doctor's breach of duty and so the claim failed.

Foreseeability
The claimant has to show that the type of damage was reasonably foreseeable. This is seen in the
case of the Wagon Mound (1961) where fuel had negligently spilled onto water in a harbor. Two
days later the oil caught fire because of welding work being done on another ship two kilometers
away. The fire spread to the claimants wharf and burnt it. The damage suffered was not reasonably
foreseeable.

Damages/remedy at law for negligence

Damages place a monetary value on the harm done, following the principle of restitutio in
integrum: (Latin for "restoration to the original condition"). Thus, for most purposes connected
with quantification of damages, the degree of culpability in the breach of the duty of care is
irrelevant. Once the breach of the duty is established, the only requirement is to compensate the
victim.

Damages are compensatory in nature. A compensatory damage addresses a plaintiff/claimant's

losses (in cases involving physical or mental injury the amount awarded also compensates for pain
and suffering).The award should make the plaintiff whole; sufficient to put the plaintiff back in
the position he or she was before Defendant's negligent act. Anything more would unlawfully
permit a plaintiff to profit from the tort.

Types of damages include:

i. Special damages - quantifiable dollar losses suffered from the date of defendant's negligent
act (the tort) up to a specified time (proven at trial). Special damage examples include lost
wages, medical bills, and damage to property such as one's car.
 ii. General damages - these are damages that are not quantified in monetary terms (e.g. there's
no invoice or receipt as there would be to prove special damages). A general damage
example is an amount for the pain and suffering one experiences from a car collision.
iii. Nominal damages; where the plaintiff proves only minimal loss or damage, or the court or
jury is unable to quantify the losses, the court or jury may award nominal damages.
iv. Punitive damages - Punitive damages are to punish a defendant, rather than to compensate
plaintiffs, in negligence cases. In most jurisdictions punitive damages are recoverable in a
negligence action, but only if the plaintiff shows that the defendant's conduct was more
than ordinary negligence ( i. e . , wanton and wilful or reckless).

Defences to Negligence Suits

Contributory negligence
This defense may be relied upon if the plaintiff is also to blame for his suffering. The defendant
mast prove that
a. The plaintiff exposed himself to the danger/risk by act or omission.
b. The plaintiff was at fault or negligent
c. The plaintiff’s negligence or fault contributed to his suffering.
This defense doesn't absolve the defendant from liability. It merely reduces the amount of damages
payable by the defendant to the extent of the plaintiff s contribution. This defense is unavailable if
the plaintiff is a child of tender years.

Tort of Nuisance
Nuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury.
A nuisance can be either public (also "common") or private. Nuisance signifies that the "right of
quiet enjoyment" is being disrupted to such a degree that a tort is being committed.

A public nuisance was defined by English scholar Sir J. P, Stephen as, "an act not warranted by
law, or an omission to discharge a legal duty, which act or omission obstructs or causes
inconvenience or damage to the public in the exercise of rights common to all Her Majesty's
subjects". A public nuisance is an unreasonable interference with the public's right to property. It
includes conduct that interferes with public health, safety, peace or convenience. The
unreasonableness may be evidenced by statute, or by the nature of the act including how long, and
how bad, the effects of the activity may be.

Private nuisance is the interference with the right of specific people. A private nuisance is simply
a violation of one's use of quiet enjoyment of land. It doesn't include trespass.

Under the common law, persons in possession of real property (land owners, lease holders etc.) are
entitled to the quiet enjoyment of their lands. However this doesn't include visitors or those who
aren't considered to have an interest in the land. If a neighbor interferes with that quiet enjoyment,
either by creating smelts, sounds, pollution or any other hazard that extends past the boundaries of
the property, the affected party may make a claim in nuisance.

To be a nuisance, the level of interference must rise above the merely aesthetic. For example: if your
neighbor paints their house purple, it may offend you, however, it doesn’t rise to the level of
nuisance. In most cases, normal uses of a property that can constitute quiet enjoyment cannot be
restrained in nuisance either. For example, the sound of a crying baby from a neighbours house
may be annoying, but it is an expected part of quiet enjoyment of properly end does not constitute
a nuisance.

Any affected property owner has standing to sue for a private nuisance. If a nuisance is widespread
enough, but yet has a public purpose, it is often treated at law as a public nuisance. Owners of
interests in real property (whether owners, lessors, or holders of an easement or other interest) have
standing only to bring private nuisance suits.

Remedies
Under the common law, the only remedy for a nuisance was the payment of damages. However,
with the development of the courts of equity, the remedy of an injunction became available to
prevent a defendant from repeating the activity that caused the nuisance, and specifying
punishment for contempt if the defendant is in breach of such an injunction.