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: Introduction to Negligence

2.1 Donoghue v. Stevenson

2.2 Duty of Care: Test for determining existence of a duty of care (Foresight,
Proximity)
2.3 Nervous Shock (Psychiatric Injury)
2.4 Economic Loss caused by Careless Statement (pure economic loss)
2.5 Economic Loss caused by Negligent Misstatement
2.6 Product Liability
2.7 Liability for Omissions

Unit 3: Negligence – Breach of the Duty of Care

3.1 Breach of Duty of Care: Standard of Care and the ‘Reasonable Man’ Test; Proving
Negligence and Res Ipsa Loquitur;
3.2 Consequent Damage

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

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Unit 6: Trespass to Land

6.1 Definition of Trespass and Land

6.2 Actions amounting to a Trespass: Airspace; Highway; Trespass ab initio
6.3 Defences: Consent; Lawful Authority; Necessity
6.4 Remedies: Damages; Injunctions; Re-entry; Action for the Recovery of Land

Unit 7: Torts Relating to Goods

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

and Conversion; Remedies

Unit 8: Occupiers’ Liability

8.1 Definition of Occupier and Premises

8.2 Occupier’s Liability Act, Cap
8.3 Liability to Trespassers and Non-Visitors
8.4 Liability of Vendors and Lessors

Unit 9: Nuisance

9.1 Statutory Nuisance

9.2 Public and Private Nuisance, and their Differences
9.3 Parties to an action: Who can Sue and who can be sued?
9.4 Defences: Prescription; Statutory Authority; Planning Permission
9.5 Remedies: Damages; Injunction; Abatement of the Nuisance

Unit 10: Strict Liability: Rule in Rylands V. Fletcher

10.1 Definition of the Rule in Rylands v. Fletcher

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

Unit 11: Liability for Animals

11.1 Common Law Liability Relating to Animals

11.2 Statutory Liability under the Act
11.3 Liability for Injury to Livestock caused by Dogs

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Unit 12: Defamation

12.1 Definition of Defamation

12.2 Distinction between Libel and Slander
12.3 Defences: Justification; Fair Comment; Absolute Privilege; Qualified Privilege;
Innocent Publication; Consent; Offer of Amends
12.4 Remedies: Injunction; Damages
12.5 Malicious Prosecution and Malicious Abuse of Process

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: Remedies and Defences

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

damages, aggravated damages, punitive or exemplary damages); Injunction;
Other remedies.
15.2 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.

Unit 16: Death in Relation to Tort

16.1 Death as Extinguishing Liability

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

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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.

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  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 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.
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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:

‘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

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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 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.

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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:
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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 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,
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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

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’

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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

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.

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.

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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)

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

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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.

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!

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.

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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.

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UNIT 3: NEGLIGENCE – BREACH OF DUTY OF CARE

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.

Damage Occasioned by Breach of the Duty of Care

18
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

• 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.
19
• 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;

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.

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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
21
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.

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
22
 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.

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.

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 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.

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.
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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;

 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.
25
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.

26
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
27
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.

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

28
 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 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.

29
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 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

30
 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 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;

31
 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

33
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 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
34
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.

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.

35
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.

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.
36
 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.

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.

37
UNIT 7: TORTS RELATING TO GOODS

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 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)
38
 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.

39
UNIT 8: 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

40
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 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

41
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 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.

42
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 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

43
UNIT 9: 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.
44
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.

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

45
 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;

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.

46
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.

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

47
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 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.
48
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 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
49
 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.

50
UNIT 10: 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.
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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?

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.

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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

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.

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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 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 11: 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,
55
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

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 12: 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,

57
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.

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.

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 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

 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;

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 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

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.

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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 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.

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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;

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

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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 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.

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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 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
65
 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.

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.

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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.

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.

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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 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;
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 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 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
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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.

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.

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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;

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  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 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;
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  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;

 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;

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 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.

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
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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: 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.

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 (3) Exemplary damages or Punitive Damages

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.

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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:

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.

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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.

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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UNIT 16: 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-
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(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 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;

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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 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.

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

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