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2015
General Principles of Law of Torts

Roggers Cletus & Khalid Kapera

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Roggers Cletus & Khalid Kapera

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1.0 INTRODUCTION TO THE LAW OF TORTS

1.1 MEANING OF TORT

The word “TORT” is derived from “FRENCH” word and also which derivered from the

Latin word “tortum” which means twisted and it is equivalent to English word of the

same spelling which means “WRONG”.

Tort refers to a civil wrong which entitles a person injured by an act or omission of

another to claim damages for the injury suffered.

1.2 MEANING OF LAW OF TORTS

Law of tort is a body of rights, obligations, and remedies that is applied by courts in civil

proceedings to provide relief for persons who have suffered harm from the wrongful

acts of others. The person who sustains injury or suffers pecuniary damage as the

result of Tortious 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.

1.3 AIMS/ PURPOSES OF LAW OF TORTS

1.3.1 Deterrence

Tort creates fear since the wrongdoer is ordered to pay damages hence deter other

person from committing the same wrong.

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1.3.2 Appeasement, Tort stops someone from revenge as the act done to him/her.

This is ensured where tort provides compensation to the victims of wrongdoer.

1.3.3 Justice

1.3.4 Compensation

A tort provides compensation to the injured party.

1.4. ELEMENTS/ESSENTIALS OF TORT

It is important to note that in order to constitute a tort there must be three elements or

essentials to be proved before the court of law as follows;

1.4.1. AN ACT OR OMISSION ON THE PARTY OF THE DEFENDANT

In order to make a person liable in tort, that person must have either done some

positive act or omission in the performance of his legal duty. For example entering on a

land of another without lawfully justification or Publishing a defamatory statement are

examples of positive acts resulting in the tort of Trespass and Defamation.

1.4.2. ACT OR OMISSION MUST NOT BE AUTHORIZED BY THE LAW

When the defendant’s acts or omission is authorized by the law no tort can result even

though the damage is caused to the plaintiff. This element was explained in the case of

MOGUL STEAMSHIP COMPANY V. MC GREGOR GOW & COMPANY1, In this case

a number of steamship companies joined together and drove plaintiff’s company out of

[1892] A.C, 25,

1

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tea carrying trade by offering reduced freight. The House of Lords held that the plaintiff

had no cause of action against the defendant since the defendant had by lawfully

means acted to protect and extend their train and increase their profits.

This is known in the Latin maxim as “Damnum Sine Injuria” means that damage has

been caused without infringement of a legal right.

1.4.3. WRONGFUL ACT OR OMISSION MUST IN SOME WAY INFRINGE OR

CAUSE INJURY TO THE PLAINTIFF

To be successful in an action for tort the plaintiff must prove that he or she has

suffered legal damage however there are certain legal wrongs like trespass which are

actionable parse, that is to say actionable without prove of any damage. So what is

important is for plaintiff to prove that the defendant has violated his or her legal rights.

This is known in the Latin maxim that “Injuria Sine Damnum” that means violation

of a legal right without causing injury or damages as explained also in the case of

ASHBY V. WHITE2, In this case the defendant who was a returning officer in

parliamentary election refused to take a vote of the plaintiff. A plaintiff didn’t suffer any

loss by this refusal because for whom he voted worn the election in spite of the refusal.

The defendant was however held liable because a plaintiff’s right had been violated.

[1703] 2 LORD RAYM 938

2

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1.5 JURISDICTION OF THE COURT IN MATTERS OF TORT

Normally depends on the amount claimed but the proceeding dealing with tort starts

either in District or Resident magistrates’ Court as the court of first instance and then

goes to the other court depending to the court hierarch. However the Primary court

also have jurisdiction to deal with matters of torts originating from Islamic and

customary laws. Read section 18(3) of MCA, Section 6 of the Government Proceeding

Act as amended by Act No. 30 of 1994.

1.6 DISTINCTIONS BETWEEN TORT AND CRIME

a) Tort is the legal wrong against the individuals such as defamation, battery or assault

or therefore it is considered to be wrong against the person to whom the damages

have been caused. Crime on the other hand is a public wrong. (A tort is an

infringement of private rights belonging to an individual but crime on the other had

is an invasion of public rights or duties affecting the whole society/community.)

b) In tort the injured party is awarded compensation or damages. Crime on the other

hand no damages is awarded to the injured party but the wrongdoer is punished

(crime results into imposing punishments to the wrongdoer)

c) Torts are mostly creatures of courts such as negligence, nuisance and others of the

like. Crime on the other hand is the creature of the parliament. OR (Most of the

laws of torts are judge-made-laws since it is not codified but all the crimes are

defined and codified)

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d) In tort the injured party himself brings an action against the “Wrongdoer”. Crime on

the other hand the “Wrongdoer” is prosecuted by the state.

e) Whatever amount paid for tortious acts in the forms of compensation goes to the

injured person but in crime the amount of fine imposed in criminal acts goes to

government treasury.

f) The purpose of awarding compensation to the injured party is to make good the loss

suffered to him but in crime the purpose of criminal law is to protect the society by

preventing and deterring the offender from committing further offences.

g) In tort burden of proof lies on the complainant or injured party but in crime burden

of proof lies on the state (prosecution side).

1.7 DISTINCTIONS BETWEEN TORT AND BREACH OF CONTRACT

a) In tort duties and obligation are imposed/created by the law; contract on the other

hand duties and obligations are created freely by the parties themselves. (In tort the

duty is fixed by the law itself but in contract the duty is fixed by the parties

themselves).

b) In tort the duty is towards every person of the community or society but in contract

duty is towards specific person or persons. (That is to say only parties to the

contract).

c) Damages are the main remedy both in action for breach of contract as well as in

action for tort. In breach of contract or in contract the damage awarded is

liquidated damages since there is already predetermined by the parties to the

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contract. In tort on the other hand it is only un-liquidated damages is awarded since

the amount payable is not predetermined so it depends to the discretion of the court

to the amount to be awarded to the injured party. Or In case of a tort the suit is for

un liquidated damages, in breach of contract the measure of damage is determined

by the stipulation between the parties or is fixed by law. The action is therefore for

liquidated damages.

d) The limitation period for institution a suit on matters of tort is three years only as

per Part 1 of the first Schedule of the Law of Limitation Act [CAP 89 R.E. 2002]; also

limitation for instituting a suit arising on a breach of contract such as suit to recover

areas of rent is six years as per Part 1 of the first Schedule of the Law of Limitation

Act [CAP 89 R.E. 2002].

e) A third party can sue for tort even though there was no contract between the

person causing injury and the person injured but in contract a third party to a

contract cannot sue for breach of contract except in some exceptional cases such as

contract relating to an agency or insurance.

f) In action for tort no privity needed or is required to be proved, in breach of contract

privity between the parties must be proved.

g) In tort exemplary damages can be given, in breach of contract exemplary damages

are not awarded except in some special cases where the compensation given to the

injured party in inadequate.

h) Law relating to tort has not been codified. It is the judge made laws but law relating

to contract has been codifies.

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2.0 FOUNDATION OF TORTIOUS LIABILITY

a) Winfield School of Thought

b) Salmond School of Thought

2.1 INTRODUCTION

There are conflicting views on the basis of liability in torts that is according to Salmond

& Winfield. Now the question is it law of tort or law of torts? In this connection or point

Salmond has posed the question:

“…Does the law of tort consist of fundamental general principle that it is wrongful to

cause harm to other person in the absence of specific justification or does it consists of

a number of specific rules prohibiting a certain kinds of harmful activities and leaving all

the residue outside the sphere of responsibility…”

In other words the question is;

 Is it the law of tort, that is to say is every wrongful act for which there is no

justification or excuse to be treated as tort.

 Is it the law of torts; that is consisting only of a number of specific wrongs beyond

which the liability under this branch of law can’t arise?

2.2 SALMOND SCHOOL OF THOUGHT ON TORTIOUS LIABILITY

So according to Salmond, it is the law of torts because this branch of law consisting

only a number of nominated torts like assault, battery, false imprisonment. There is no

general principle of liability and if the plaintiff can place a wrong done to him in any of

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the pigeon-holes each containing a labeled tort he will succeed. This theory is also

known as PIGEON- HOLES THEORY. This school believes that there is a general

fundamental principle behind the law of torts; the school argues that:

“….Just as the criminal law consists of a body of rules establishing specific offences, so

the law of torts consists of rules establishing specific injuries. Neither in the one case

nor is there any general principle of liability….”

IN OTHER WORDS:

The school contends that the law of torts consists of a set of pigeon holes in which each

plaintiff in order to get remedy has to fit his claim. It follows therefore that whenever

such plaintiff fails to do so he loses the claim.

2.2.1 ARGUMENTS IN SUPPORT OF SALMOND SCHOOL OF THOUGHT OR

ARGUMENTS PUT FOR THE PIGEON HOLE THEORY SCHOOL

(i) There is a definite number of Torts outside which liability in Tort does not exist.

(ii) Under the pigeon holes theory, one can injure another as much as he likes without

fear of his suing him in tort, provided the conduct does not fall under the rubric:

Assault, Battery, Deceit, Slander, etc.

(iii)Law of Tort presents us with a row of pigeon holes each labelled with the name of a

particular tort such as Trespass, Strict Liability, Defamation, Vicarious Liability,

Occupiers' Liability, etc and if an injury cannot be fitted into one of these pigeon

holes, plaintiff will not have a remedy in Tort.

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(iv) Edward Jenks, Esq., has argued in support of the pigeon hole theory by stating that

early textbooks of English Law, being more with remedies than with general

principally make the Remedies their basis of classification. These known Remedies

are known and definite in number.

(v) I am sure you recall definition of Tort offered by Winfield to the effect that Tortious

Liability is breach of a duty primarily fixed by the law; this duty is towards persons

generally; and its breach is redressible by an action for un liquidated damages.

Edward Jenks takes objection to the definition of Tort offered by Prof. Winfield

include every member of the subject class and excludes every non-member. Jenks

is of the view that definition of Tortious liability furnished by Winfield does not cover

all the Torts. That if Winfield's definition is applied, then, argues Edward Jenks,

Seduction, Obstruction of Public Highway and Rule in Rylands Vs. Fletcher will not

be Torts. For they can only be vindicated by certain very limited classes of persons.

(b) Winfield's definition is purely procedural. It does not tell us what a Tort is. It

merely tells us how a Tort may be vindicated. And this, though a matter of importance

to lawyers, is a matter of indifference to the layman. The interest of the layman, argues

Jenks, is to know whether he can get a remedy for a loss inflicted on him.

(vi) P.A. Landon subscribes to the Pigeon Theory as the basis of Liability in Tort. He

analyses Winfield's definition of Tortious Liability and argues that the House of Lords

has rejected Winfield's School and has adopted the Pigeon Theory School as a basis

of Tortious Liability. Landon contends that the Court of Appeal of England, under the

influence of Bowen, LJ. got dangerously near the view that all damnum (injury) is

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actionable unless it is justifiable. This was also the view of Winfield and his

contemporaries of the general theory of Tortious Liability. But the House of Lords,

argues Landon, reverted to the historical basis of the law in Mayor of Bradford Vs.

Pickles and Allen Vs. Flood. House of Lords, continues Mr. Landon, lay down once

and for all the rule that the Plaintiff must bring his case under some definite head of

Tort before the defendant can be called on to reply. This ruling, according to Mr.

Landon, confirms that Law of Tort is made up of definite heads of Tort and is not

based on general theory.

2.3 WINFIELD SCHOOL OF THOUGHT ON TORTIOUS LIABILITY

Winfield on the other hand is of the view that it is law of tort. According to his theory

every wrongful act is actionable as tort unless lawfully justification for that can be

shown. For the liability under this branch of law to arise it is not necessary that the

wrongful act should have a special label like assault, false imprisonment. It is

consonance or compatible with the principle of “Ubi Jus Ib Remedium”, That is to say

where there is a right there is a remedy. Also Winfried believes that in explains those

torts are not infinitely various and not limited therefore he said;

“The court has full power to create a new tort without Baptism ceremony of each

extension” that means a court of law are free to create a new torts wherever they deem

fit to do so.

NB; Generally in order to get remedy under this school of thought the plaintiff must

establish that he had a legal right before the defendant’s act. It is therefore not enough

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to show that the defendant’s malice but it must be shown that such defendant’s act is

legally wrongful.

2.3.1 ARGUMENTS IN SUPPORT OF WINFIELD SCHOOL OF THOUGHT

(i) All injuries done to another are Torts unless there is some justification recognised by

the law.

(ii) Under the general theory of Tortious Liability, if I injure my neighbour he can sue

me in tort whether the wrong happens to have a particular name like Assault,

Battery, Deceit, Slander or whether it has no special title at all.

(iii)Courts have full powers to create new Torts (with judicial caution) and in the

process extend the law of Torts without any baptismal ceremony for each extension.

(iv) No Court has sent away a Plaintiff empty-handed in any action in Tort simply

because the action was a new one and does not fit into any of the so called existing

pigeon holes. Professor Winfield cites examples of cases of first impression and

argues that there is no reported case which decided that the action was not allowed

because it was new: "If the judges thought that a new remedy was necessary, they

invented it, unless the invention of it would have shocked public opinion, in which

event they left it to Parliament to create it or not, as Parliament pleased it".

(v) Winfield has also contended that for many centuries English Law has been changing

through judicial decisions and the changes have never been inhibited by lack of

appropriate pigeon holes.

(vi) In the early days of English writ system new remedies were created freely enough.

He cites Glanville's time, the King not only sold writs, but made them and courts,

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unhampered by precedents were doing justice on principles of moral fairness, and

were administering equity long before men had dreamed of equity as something

distinct from Common Law.

(vii) You must make it a point of reading all the cases and articles elaborating the

positions taken by scholars in support of their respective positions on Foundations of

Tortious Liability.

(viii) Some other authorities cited by Professor Winfield in support of General Principle

on Foundations of Tortious liability include:

 He argues that Blackstone is markedly in favour of a general liability in Tort and so

were his contemporaries.

 Pratt, CJ. Once said that "Torts are infinitely various, not limited or confined.

(CHAPMAN VS. PICKERSGILL, 2 WILLS. 1 45, 1 46 (1 760)).

 Lord Mansfield is reported to have referred to Action Upon Case as "liberal action. (

GARDINER VS. COASDALE, 2 BURR.L 905, 906 (1 760); and in MOSES VS.

MACFERLAN, 2 BURR. 1 005, 1 01 1 -1 01 2 (1 760).)

 That Brown, LJ. once expressed the view that at Common Law there was a cause of

action whenever one person did damage to another wilfully and intentionally, and

without just cause or excuse. ( SKINNER & CO. VS. SHEW & CO. [1 893] 1 CH

41 3, 422)

 Winfield cites also the Tort of Negligence as an example of willingness of Courts to

create new Torts without the inhibitions of pigeon holes. Recognition of the Tort of

Negligence in 1932 as a distinct Tort was not met with an opposition due to novelty

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of the Tort. Winfield has shown that in the case of Vaughan V. Menlove (BING. N.S.

468, 4 SCOTT 244, 7 C&P. 525 (1 837)).the Court extended the standard of

"reasonable man" from the law of Bailments to the Law of Torts at large.

(ix) Winfield illustrates the development of the Tort of Deceit in support of the General

Principle on Foundations of Tortious liability. He argues that Deceit at first had the

peculiar narrow signification of abuse of legal procedure. The concept developed

through the Law of Sale in particular and the Law of Contract in general. Deceit did

not appear as an independent Tort till 1789 in the case of Pasley V. Freeman T.R.

51, 63.

(x) (The rule of Strict Liability laid down in Ryland’s V. Fletcher (1 868 LR 3 H.L

330).also came into being without any objection as to its novelty. Birth of the Tort of

Strict Liability, it has been argued, was not the creation of a new Tort at all, but

simply an extension of a very ancient principle that a man must keep his cattle from

straying, irrespective of whether he has been negligent or not..".

2.4 GENERAL CRITIQUE ANALYSIS OF BOTH SCHOOLS OF THOUGHT

Professor Glanville Williams provides what he calls a "middle Position" as an attempt to

reconcile the two opposing schools of thought. He begins his reconciliation by asking a

question: Suppose there is a case of first impression (I.e., a case on a novel issue

which has never previously been decided by the Courts), there is no legal argument

given by counsel, but there is proof that the plaintiff was injured. Does the school

espousing the General Principle on Foundations of Tortious liability (because of

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plaintiff's visible injury) say judgment should go in favour of the plaintiff? Or does the

school espousing Pigeon Holes Theory say judgment be entered in favour of the

defendant (because the case is not covered by any known Tort).

 Glanville William's plain answer to the question posed is: Court is presumed to know

the law with or without the assistance of the Counsels. The Court will try and decide

the case from the analogies as they present themselves. Glanville Williams contends

that there is no presumption that the law is in any body's favour.

 On the issue of expansibility of the law of Tort (i.e., development of the Law of

Tort) Glanville Williams sees a lot of merit in the General Theory School. The

General Theory School insists that Law is neither fragmentary nor static. Professor

Williams argues that "Law is like apparel, which alters with the time".

 Glanville Williams, on behalf of the school which regards the basis of Tortious

Liability to be individual and distinct Torts, points out that the Pigeon Theory School

does not regard the Law of Torts to be unconnected bits and pieces. He regards it

unfair to assume Salmond's theory sees nothing but shreds and patches in the law

of civil wrongs.

 Glanville Williams is of the view that both schools agree that Law of Tort is not a

closed system. It has room for development as society changes. To say that the law

can be collected into pigeon holes does not mean that these pigeon holes may not

be capacious nor does it mean that they are incapable of being added to.

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 After showing that there are no apparent differences between the General Theory

school and pigeon Theory School, Glanville Williams gives the following analysis on

the controversy:

 First School (Winfield School of thought) has shown that the rules of liability are

very wide.

 But the second school has also shown that some rules of absence of liability are very

wide [law of Tort is as much about liability as it is about non-liability].

 Neither School has shown that there is any general rule whether of liability of non-

liability to cover new cases that have not received the attention of the courts.

 In cases of First impression, there is no ultimate principle directing the Court to find

for one party or the other. The novelty of the case not being a reason for favouring

either side. The Court is at liberty to decide, and does decide on reasons that are

extra legal.

 Present heads of liability or non liability are not fixed and immutable but, there is no

comprehensive theory of liability there is simply a wide and expansive theory.

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3.0 TRESPASS TO PERSON

3.1 ASSAULT

3.1.1. MEANING OF ASSAULT

Assault as intentional putting another person into a reasonable apprehension of an

immediate or imminent harmful or offensive act or contact.

According to Salmond, assault is an act of putting another person in reasonable fear or

apprehension of an immediate “battery” by means of an act amounting to an attempt

or threat to commit a “battery”.

Generally; assault is an act which causes another person reasonably to apprehend

that force will immediately be inflicted upon him.

NOTE: The person who feels threatened need not experience fear, but he or she must

believe that the threat is one capable of being executed. Thus a violent gesture by a

person who is unable to get near to the person at whom the gesture is directed is not

an assault:

READ: Thomas v .National Union of Mineworkers (South Wales Area) [1985]

2 All ER 120.

The Tort of Assault is an act of the Defendant which causes the Plaintiff reasonable

apprehension of the infliction of a battery on him by the Defendant. Words

accompanying a menacing gesture may negative its appearance of being an assault.

For instance where the Defendant Y, who whilst in a moving vehicle, and with no

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chance of reaching at X, threatens x. Here no Assault will be established because there

is no possibility of infliction of any harm on the complainant X. An Assault means any

act which puts the Plaintiff in fear that a battery is about to be committed against him.

3.1.2 ELEMENTS OF ASSAULT

a) A person should be put in present fear of violence. (The plaintiff must prove that the

defendant to accomplish that action immediately).

b) The threat shouldn’t be conditional.

c) There should be ability to accomplish the act.

d) The threat should be accompanied with some gestures or preparations (mere threat

may not amount to threats).

e) There should be reasonable apprehension of fear. (Threat should produce fear in

the mind of reasonable man)

 In simple terms, assault means a threat to cause immediate violence on another

person. Verbal threats amounting to assault are the ones that are coupled with

actions.

3.1.3 In summary assault consists of two major ingredients:

a) Threat of immediate force;

b) Procurement in the plaintiff’s mind expectation of force or reasonable

apprehension impact of something on one’s body.

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But if the plaintiff has no reasonable belief that the defendant has present ability to

affect his purpose it is presumably not an assault.

 It has to be noted from the outset that:

 Threatening words alone are not actionable, because in assault bodily movement is

very important.

 Remote future is not sufficient.

ILLUSTRATION

a) Pulling way a chair, as a practical joke from one who is about to sit on it is probably

an assault until he reaches the floor. When he comes in contact with the floor, it is a

“battery”

b) Pointing a gun at a man in a threatening manner, even though to the knowledge of

the defendant (but not to that of the plaintiff), it is unloaded.

3.1.4. OTHER MEANING OF ASSAULT

 Assault is an act of the defendant which causes to the plaintiff reasonable

apprehension of the infliction of the battery to him by the defendant.

 When the defendant by his act creates an apprehension in the mind of the plaintiff

that he is going to commit battery against the plaintiff, the wrong of assault is

completed.

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 The wrong consists in an attempt to do harm rather than the harm being caused.

The applicable test is whether an apprehension has been caused in the mind of the

plaintiff that battery is going to be committed against him.

 Mere verbal threat is not assault unless it creates a reasonable apprehension in the

mind of the plaintiff immediate force will be used.

3.2. BATTERY

3.2.1. MEANING OF BATTERY

The term battery has defined differently by different authors as follows;

 According to Winfield, Battery is the intentional and direct application of force to

another person.

 According to Salmond, Battery is the application of force to another person without

any lawfully justification. It is without consent of the person who is harm.

Generally; the wrong of battery consists in intentional application of force to another

person without lawfully justification.

 Battery is the most common form of trespass to the person. It is committed by

intentionally bringing about a harmful or offensive contact with the person of

another. Battery action serves the dual purpose of affording protection to the

individual not only against bodily harm but also against any interference with his

person, sense of honour and dignity:

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Illustration 1

 John is a self-styled tycoon living in the city of Dar es Salaam. He admires Mariam

so much but he never disclosed his intention. Having no way of quenching his

desires, one day John decided to follow Mariam in a dance where he decided to

force his kiss on her leaving everybody in the dance puzzled. In this situation John is

liable for battery.

Illustration 2

 D and C are school mates for quite a long time. While in class, D, out of practical

joke, gently pulled away the chair when C was about to sit on it. As a result C fell on

the floor. C can take D to the court and sue him for battery.

 Note, what amounts into force, here force is any physical contact with the body of

the claimant, even his/her clothes are sufficient to amount into force. There must be

an involuntary and intentional act on the part of the defendant to bring the contact

with the claimant. If there is presence of consent there is no battery at all.

3.2.2 ESSENTIALS /INGREDIENTS OF BATTERY

 There should be the use of force.

 The force used should be without any lawfully justification.

 False must be intentional

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3.2.2.1. USE OF FORCE

Even though the force is very trivial and doesn’t cause any harm, the wrong is still

constituted. Physical hurt need not to be there. The force may be used even without

physical contact with the aggressor. For instance the use of stick.

3.2.2.2. ABSENCE OF LAWFULLY JUSTIFICATION

It is essential that the use of force should be intentional and without any lawfully

justification. Harm voluntary suffered is not battery.

3.2.2.3. FALSE MUST BE INTENTIONAL

3.2.3 COMMON SITUATIONS OF BATTERY

3.2.3.1. DOMESTIC VIOLENCE

Members at the house hold are protected from unjustifiable violence which is in form of

battery. For instance the Law of Marriage Act of 1971 [CAP 29 R.E. 2002] provides

under section 66 that no person has the right to inflict corporal punishment on his/her

spouse. Children in families also protected under common law principles, but parents

and guardians are allowed to administer reasonable chastisement or lawful correction.

It is doubtful whether the ongoing discussion of whether children’s should be smacked

or not will come up with resolution of abandoning such constructive means of correcting

children.

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3.2.3.2. PUPIL-TEACHER RELATIONSHIP

Under the National Education (Corporal Punishment) Regulations, 2000 under

regulation 3(1) and (2) Corporal punishment may be administered for serious breaches

of school discipline or for grave offences committed whether inside or outside the

school which are deemed by the school authority to have brought or are capable of

bringing the school into disrepute. Corporal punishment shall be reasonable having

regard to gravity of offence, age, health, the sex of the pupil and shall not exceed 6

strokes on any occasion. The mandate to administer the punishment is vested with the

head of the school or a delegate appointed in writing.

3.2.3.3. HOSPITAL SITUATIONS

Battery takes many shapes such as in the form of beating or spanking at someone,

touching someone unlawfully. In hospital situations, we have what is known as

operating someone without his consent.

KLOVIS NJAREKETA V. THE DIRECTOR OF MEDICAL SERVICES, ENTEBBE &

DR. MCADAM, EUROPEAN SURGEON, MULAGO 17 E.A.C.A. P. 60,

FACTS: A patient of 24 years, having a malignant growth on his leg. It was found

necessary to amputate the leg to save his life. The patient at first consented but

afterwards withdrew his consent. The hospital authorities thought and decided to

amputate despite the withdrawal of the concert in order to save the life of the patient.

The parents of the patient were aggrieved by this step hence the suit.

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HELD: The Court of Appeal held that: although the appellant would certainly have died

if his leg were not amputated, the amputation after the withdrawal of consent

amounted to technical trespass.

GENERAL PRINCIPLES:

It should be borne in mind that a battery is committed even though no harm is

affected. What matters is an improper direct contact with another person.

3.2.4. DEFENCES OF BATTERY

There are several offences of battery as follows;

3.2.4.1. SELF DEFENCE

It is lawful for any person to use a reasonable degree of force for the protection of

himself, or any other person against any unlawful use of force. Section 18 of the Penal

Code [CAP 16 R.E. 2002] will be pleaded in criminal court to try to exonerate the

responsible person from liability. One may succeed and be set free. But because

winning a case in criminal court is not a bar in instituting a civil suit, arguably, the same

defence could be pleaded in civil suits.

For the defence of self defence to succeed the defendant should prove the following

issues;

 Firstly, one has to show that reasonable force was used and was not excessive as in

the case of JOHN NYAMHANGA BISARE V. R [1980] TLR 6. If it is greater than

it is required for the purpose of self-protection, the defence will fail.

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 Secondly it has to be proportional with the corresponding force. Where one is

attacked with a deadly weapon, defending himself oneself with the similar one will

be accepted. But it cannot be justified, where one uses a sword against someone

using a walking stick.

 Thirdly, it has to be shown that the contract, which includes the injury, originated

from the victim.

3.2.4.2. CONSENT OF THE PLAINTIFF

It is a good defence that the plaintiff consented to battery example in boxing, medical

operations or tattooing.

3.2.4.3. REASONABLE CHASTISEMENT

It is not trespass for a parent to administer reasonable chastisement to his child under

eighteen. Neither is it a wrong for school teachers to administer punishment in

accordance with the National Education (Corporal Punishment) Regulations, 2000.

3.2.5 REMEDIES OF BATTERY

 A person may petition for damages.

3.3 FALSE IMPRISONMENT

3.3.1. MEANING OF FALSE IMPRISONMENT

According to Winfield, False imprisonment constitutes imprisonment of total restraint for

some period, however short upon the liberty of another without sufficient justification.

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Generally false imprisonment is the total restraint of person’s liberty or someone liberty

without lawful justification. It is not necessary to confine a person in one room. It is

only depriving a person’s liberty. It is infliction of bodily restrain which is not expressly

or implied authorized by the law.

OR

False imprisonment is unlawful imposition of constraints on another’s person freedom of

movement from particular place. The word imprisonment doesn’t necessary mean

incarceration (not necessary to be in jail). So any restraint imposed upon the liberty of

another without lawfully justification is false imprisonment. The restraint may be

physical like incarceration into a cell or house or by a mere show of authority have ever

short may be.

3.3. 2. ESSENTIALS/INGREDIENTS OF FALSE IMPRISONMENT

 Total restraint.

 Unlawfully Detention (detention must be unlawfully).

3.3.2.1. TOTAL RESTRAINT

The tort of false imprisonment is constituted when there is total restraint. A person

must have been completely deprived of his liberty to beyond certain limits. This has

been explained in the case of MORIS, A. SASAWATA V. MATIAS MALIEKO [1980]

TLR 158;

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“…In this case SAMATA J as then he was held that to constitute false imprisonment

there must be restraint of the plaintiff’s liberty. The restraint in question must be

confining the victim’s movement in all directions…”

Therefore it is not imprisonment if a man is prevented from going to a particular

direction but he is free to go any other directions. This has been explained in the case

of BIRD V. JONES [1845] 7QB 742, as follows;

“…In this case a part of public foot way, as opposed to carriage way on hammer Smith

Bridge was wrongfully enclosed by the defendant. Seats were put there and entry to

the enclosure was allowed only to those who made the payment to watch the rowing

there. The plaintiff asserted his right of using this foot way, climbed over the fence of

the enclosure but was prevented to go forward. He remained there for about half an

hour and subsequently brought an action for false imprisonment. It was held that there

was no false imprisonment as there was no total restraint on the plaintiff’s liberty. The

plaintiff being free to go back or even to cross the bridge thought the carriage way. It

was observed by Patterson J. “I can’t bring my mind to the conclusion that, if one may

merely obstruct the passage of another in a particular direction…he can’t be said

thereby to imprison him…”

3.3.2.2. UNLAWFULLY DETENTION

In order to constitute the tort of false imprisonment, it is necessary that the restraint

imposed must be unlawfully and without any legal justification. Therefore when there is

legal justification for restraining a person hence there is no false imprisonment.

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Similarly where there is “Volenti Non Fit Injuria” on the party of the victim no liability of

false imprisonment can arise. “Volenti non fit Injuria” means voluntary assumption of

risk.

3.3.3. DEFENCES FOR FALSE IMPRISONMENT

3.3.3.1. LAWFUL ARREST

It is good defence if the defendant can show that at the same time of arrest, he was

exercising powers conferred under the law for stance a police officer exercising power

of arrest under the criminal Procedure Act, 1989.

3.3.3.2. INCOMPLETE RESTRAINT

Because the basis of false imprisonment is a complete restraint, it is a defence

therefore to show clearly that the plaintiff was not completely restrained.

3.3.3.3. VOLENTI NON FIT INJURIA

To set up this defence successfully, the defendant has to show that the plaintiff express

or implied assent was given with knowledge of the facts.

3.3.4 REMEDIES FOR FALSE IMPRISONMENT

3.3.4.1 SELF-HELP

Jumping through the window or through any aperture of the building is accepted under

the law as one form of remedies against false imprisonment.

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OR

This is the remedy which is available to person while he is still under detention. A

person is authorized to use reasonable force in order to have an escape from detention

instead of waiting for legal action and procuring his release thereby.

3.3.4. 2. ACTION FOR DAMAGES

One could claim general or special damages depending on the circumstances. They are

general if one is relying on the discretion of the court to be paid the proposed figure

and it is special damages if one prove what he is claiming and on the basis of which the

court grants the same.

3.3.4.3. HABEAS CORPUS

The word “Habeas corpus” is a Latin word which means have the body; in other word

i.e. you must justify an imprisonment. An application could be lodged to the court of

law asking the court to release a person in custody pending the hearing of the matter.

OR

It is a speedier remedy for procuring the release of person wrongfully detained. So the

person detaining is required to produce the detained person before the court and

justify the detention. If the court finds that the detention is without any just or

reasonable ground it will order that person detained should be immediately released.

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WHO MAY APPLY HABEAS CORPUS

An application for the writ of habeas corpus may be made by the person illegally

detained. But if the prisoner himself is unable to make such application, it cab ne made

by any person having interest in the prisoner. Thus can be; husband, father, mother,

sister, or even a friend may in circumstances make an application for the writ of habeas

corpus. He should not however, be a total stranger.

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4.0 MALICIOUS PROSECUTION

4.1 MEANING OF MALICIOUS PROSECUTION

Malicious prosecution is instituting un successfully criminal proceedings maliciously and

without reasonable and probable cause against another person. So when such

prosecution causes damage to the person prosecuted, is a tort for which he can bring

an action. Sustain an action for malicious prosecution, a plaintiff has or must prove the

following five important requirements.

4.2 ELEMENTS OF MALICIOUS PROSECUTION

a) It has to be proved that there was a prosecution of a plaintiff by the defendant.

b) It must be proved that the defendant had no reasonable and probable cause to

prosecute the plaintiff.

c) It has to be proved that the defendant acted maliciously.

d) It has to be proved that the prosecution instituted by the defendant had ended up in

favour of the plaintiff.

e) It has to be proved that the plaintiff had suffered damages recognized by the law.

Therefore each elements of malicious prosecution may be explained independently as

follows;

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4.2.1. THE PLAINTIFF WAS PROSECUTED BY THE DEFENDANT

For the purpose of malicious prosecution, the prosecution complained of must have

been instituted against the plaintiff and not a merely y authorities on facts furnished or

given by the defendant. (Either to the police or magistrate). So if a person lays before

the police officer or a magistrate a statement of fact has he believes to be true without

making a specific charge of a crime and the magistrate or police officer by mistake

treats a matter as a crime and consequently the plaintiff is arrested and prosecuted, the

defendant who has made a complaint he is not responsible for the mistake.

However where a person through the use of false or falsely informed the police about

a crime knowing that it is not true and upon the strength of that information the police

put the matter in the cause of justice will be held in law to have instituted proceedings.

In order to determine whether the defendant has instituted the proceedings, the test is

whether he was actively instrumental in putting the law in motion. Refer the case of

HOSEA LALATA V GIBSON ZUMBA MWASOTE [1980] TLR 154, In this case the

court held as follows;

I. In order to succeed in a suit for malicious prosecution the plaintiff must prove the

following;

a) That he was prosecuted by the defendant.

b) That the prosecution ended in his favour.

c) That the prosecution was conducted without reasonable and probable cause.

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d) That in bringing the prosecution the defendant was actuated by malice.

II. An acquittal on appeal constitutes favorable termination of proceedings in favour

of the accused.

III. In malicious prosecution a prosecutor is a person who is actively instrumental in

putting the law in motion.

IV. In tort special damages must be specifically pleaded and strictly proved.

IMPORTANT:

It is important to note that in malicious prosecution a prosecutor is a person who is

actively instrumental in putting the law in motion.

4.2.2. THE PROSECUTION WAS MADE WITHOUT REASONABLE AND

PROBABLE CAUSE

In malicious prosecution the plaintiff has also to prove that the defendant prosecuted

him without reasonable and probable cause. It has been said that there is a reasonable

and probable cause when the defendant has sufficient grounds thinking that the

plaintiff was probably guilty of the crime imputed. Refer the case of ALIMOHAMED

OTHMAN V. D.C [1953] LRT 183.

What amount to reasonable and probable cause was defined by Hawkins J in the

English case of HICKS V. FAULKNA (1881) QBD 167 AT PAGE 171 to means the

following;

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“…An honest belief in the guilt of the accused upon a full conviction founded upon

reasonable grounds of the existence of a state of circumstances, which assuming them

to be true, would reasonably lead any ordinary prudent and cautious man, placed in the

position of the accuser to the conclusion that the person charged was probably guilty of

the crime imputed…”

From this definition, it will be apparent that reasonable and probable cause depends on

the facts and the genuineness of the defendant’s belief based on them.

With regard to the former, the relevant facts are those known to the defendant at time,

he cannot evade liability by pointing to facts showing that the plaintiff was guilty if

these were not known to him until later.

The genuineness of the defendant’s belief that the facts warrant a conviction requires

careful understanding. The question is “did the defendant honestly believe in the

plaintiff’s guilt? And not did he honestly believe that there was reasonable and probable

cause. This is because it is the judge who finally decides whether there was reasonable

facts and subordinate interference are left to the jury.

4.2.3. MALICE (IMPROPER MOTIVE)

Malice is defined in the Oxford Dictionary of Current English 10th by Sweet & Maxwell,

London 1968 to mean active hatred or desire to harm others. It is also for the plaintiff

to prove that the defendant acted maliciously in prosecuting him, that is.., there was

malice of some indirect and illegitimate motive in the prosecution that is, and the

primary purpose was something other than to bring the law into effect.

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It means that the defendant is actuated not with the intention of carrying the law into

effect but with an intention which was wrongful in point of fact. Malice means the

presence of some improper and wrongful motive that is to say intent to use the legal

process in question for some other than its legally appointed or appropriate purpose.

Apart from showing that there was absence of reasonable and probable cause, it is also

to be proved that the proceedings were initiated with malicious sprit, that is from an

indirect and improper motive and not in furtherance of justice. The prosecution must

have been launched with an oblique motive only with a view to harass the plaintiff.

Whether the defendant has acted maliciously is determined from the circumstances of

the case.

In PETER NG'OMANGO V. GERSON M.K. MWANGWA AND THE ATTORNEY

GENERAL [1993] TLR 77

In this case the Court of Appeal established malice when it found out that the Principal

of Mpwapwa Teachers' College was in conflict with Peter (a tutor) stemming from the

fact that peters was a very nice singer.

Also in JEREMIAH KAMAMA V. BUGOMOLA MAYANDI [1983] TLR 123

In this case the High Court was satisfied that the defendant’s allegations against the

plaintiff were based on political rivalry for the post of village chairman.

Likewise in HOSEA LALATA V. GIBSON ZUMBA MWASOTE [1980] TLR 154, the

judge was satisfied that the defendant prosecuted the plaintiff with malice.

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when it was established that the criminal case was manufactured.

Refer the case of JEREMIA KAMAMA V. BUGOMOLA MAYANDI [1983] TLR 123,

In this case the court held as follows;

(i) For a suit for malicious prosecution to succeed the plaintiff must prove

simultaneously that:

a) He was prosecuted.

b) That the proceedings complained of ended in his favour.

c) That the defendant instituted the prosecution maliciously.

d) That there was no reasonable and probable cause for such prosecution.

e) That damage was occasioned to the plaintiff.

(ii) For purposes of malicious prosecution, a person becomes a prosecutor when he

takes steps with a view to setting in motion legal processes for the eventual prosecution

of the plaintiff.

(iii) Malice exists where the prosecution is actuated by spite or ill-will or indirect or

improper motives.

IMPORTANT:

Malice exists where the prosecution is actuated by spite or ill-will or indirect or

improper motives.

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4.2.4. THE PROCEEDING WAS TERMINATED IN FAVOUR OF THE PLAINTIFF

It is also an essential that the prosecution terminated in favour of the plaintiff. If the

plaintiff has been convicted by a court, he cannot bring an action for malicious

prosecution, even though he can prove his innocence and also that the accusation was

malicious and un founded. Termination in favour of the plaintiff doesn’t mean judicial

determination of his innocence; it means absence of judicial determination of his guilty.

The proceedings are deemed to have terminated in favour of the plaintiff when they do

not terminate against him.

Thus the proceedings terminate in favour of the plaintiff if he has been acquitted

technicality, conviction has been quashed or the prosecution has been discontinued or

the accused is discharged. If the prosecution results in conviction at the lower level but

conviction is reversed in appeal, the question which arises is “can an action for

malicious prosecution be bought in such case?”

In the case of REYNOLDS V KENNEDY (1867) L.R. 2 C.P. 684,

“…It has been held that the original conviction was a bar to action of malicious

prosecution and subsequent reversal of conviction, appeal was of no effect. This

position doesn’t appear to be correct in view of subsequent decisions. Thus if on appeal

the proceedings were terminated in favour of the plaintiff therefore he had a cause of

action…”

Refer the case of FESTO V. MWAKABANA [1971] HCD NO.417, In this case it was

held as follows;

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“…It is now, I think settled law that in an action for malicious prosecution the plaintiff

to succeed must establish first, that the defendant acted without reasonable and

probable cause, and secondly that the defendant acted maliciously and thirdly, that he

has suffered some damage recognized by law. What is reasonable and probable cause

is not an easy thing to define but I think it is now accepted that the definition prided by

Hawkins J. in Hicks v. Faulkner (1978) 8 Q B D 167, 171, is the best guide we have in

determining actions of this type…”

4.2.5. PLAINTIFF MUST PROVE THAT HE HAS SUFFERED DAMAGE

It has to be proved that the plaintiff has suffered damage as a result of the

consequences of the prosecution complained of. Even though the proceeding

terminates in favour of the plaintiff, he may have suffered damage as a result of the

prosecution. Damage is the gift of the plaintiff and in the case of MOHAMED AMIN V

JONGEDRA A.IR. 1947 P.C. 103, whereby in this case it was held that

“…To find an action for damages for malicious prosecution brought upon criminal

proceedings, the test is not whether the crime proceedings have reached a stage at

which they may be correctly described as a prosecution; the test is whether such

proceedings have reached the stage at which damage to the plaintiff results. Their

lordships are not prepared to go by saying that the mere representation of a false

complaint which first seeks to set the criminal law in motion will permit found an action

for damages for malicious prosecution…”

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As observed by Holt C.J in SAVILE V. ROBERT [1899] 1 RAYM. 374, where it was

pointed out that three-fold damage may be caused to the plaintiff as a result of the

prosecution:

“…First, damage to man’s fame as if the matter whereof he accused is scandalous;

second, damage to person, as where man is put in danger to lose his life, or property;

and third, damage to his property, as where he is forced to expend his money

necessary charges to acquit himself of the crime of which he is accused…”

Different damages should be proved by the plaintiff to succeed in his case as seen as

follows;

4.2.5.1. PROOF OF MONETARY VALUE

If they are special damages then the law requires strict proof as in Peter Ngomango

case. Otherwise, if they are general damages there are no real standard measures or

yardstick available as in [1969] HCD No. 23 & [1991] TLR 347

4.2.5.2. LOSS OF PERSONAL SECURITY

One could suffer damage which is in the form of insecurity for his life or property. That

is one’s life is threatened. In JEREMIA KAMAMA V. BUGOMOLA MAYANDI, where

the appellant alleged in the meeting that the respondent was responsible for arson

which had been committed in the village. Justice Chipeta observed that the

respondent’s liberty was endangered and also lost in prison for about a month.

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4.2.5.3. THREAT OR LOSS OF JOB

For someone in particular employment or professional which demand adherence to

certain norms or ethics it is serious when a false allegation is made against him or her.

In HOSEA LALATA V. GIBSON ZOMBE MWASOTE (Supra), the Court observed

that the plaintiff being a person who was administering justice (magistrate), an

allegation of corruption against him was too damaging to his profession.

4.2.5.4. LOSS OF PERSONAL LIBERTY

This entails situations whereby one is imprisoned for a certain period of time. In

Hosea’s case, the judge found out that the respondent was assailed for about eight

months as a result of the appellant’s wrongful acts; hence he was entitled to

compensation.

4.2.5.5. DAMAGE TO PROPERTY

It is possible that when one is busy in criminal sessions some of one’s basic activities

will have to be shelved. This may lead to damage of property. In J. KAMAMA

(Supra), because of the respondent’s incarceration his crops in his shamba were

exposed to waste and were in fact destroyed.

4.3 DEFENCES

4.3.1. Lack of prosecution

It is good defence for the defendant to show that the plaintiff was never prosecuted.

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This position is supported by the High Court decision in YOHAN S/O MHUNI (supra) and

LADISLAUS NGAYA (supra)

4.3.2. Prosecution in good faith.

4.4. REMEDIES

4.1. Compensation

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5.0 TRESPASS TO LAND, CHATTELS/GOODS AND CONVERSION

5.1 TRESPASS TO LAND

Trespass to land is the direct interference with another person’s land without lawfully

justification or authority. Or trespass to land means entering, remaining or causing an

object to fall on the premises/land in the possession of another without permission and/or

without justifiable cause.

It must be noted that trespass to land is the kind of tort which is actionable parse i.e.

actionable without prove of damage. In other words there is violation of legal right without

causing physical injuries. So injuries need not to be proved.

5.1.1. TRESPASS TO LAND CAN BE COMMITTED IN ANY OF THE FOLLOWING WAYS;

(a) Physical entering or remaining into another person’s land

without lawfully justification.

The slightest crossing of the boundary of the Plaintiff's land is sufficient: LENTICK V.

CARRINGTON [1765] 19 ST. TR. 1030, 1066; ASHBY V. WHITE (1703) 87 ER

810;

Remaining in such land possessed by another after permission or right to be therein has

ceased or expired. KODILINYE, G., at page 179 gives an example, X enters Y's land

lawfully, X remains there after his right of entry has come to an end;( and at that time a

person become a trespasser abinitio)

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(b) By pressing object on the land or causing something else.

Read: KODILINYE, G. who states that it is trespass to place any material object on the

land of another or fire a gun into another's soil [PICKERING V. RUDD (1815) 171 ER

70], to drive nail into the soil [SIMPSON V. WEBER (1925) 133 LT 46], or place a

ladder against a wall [WESTRIPP V. BALDOCK {1939} 1 ALL ER 279]. It is essential

for liability in trespass that the placing or projecting of the object on to the plaintiff's land

should be direct. One can trespass into another's land unknowingly.

(c) Continuing trespass

OTHERS

Possession of premises

One commits trespass when he enters unto the land that is in occupation of another not

necessarily in his/her ownership. Premises are in possession of another when they are in

the possession of such people like tenants and licenses. On this aspect it is immaterial

whether or not one is in possession lawfully. In Jela Kalinga v. Omari Karumwana,

the respondent was not in occupation of the premises.

JELA KALINGA V. OMARI KARUMWANA [1991] TLR 67

A person who was not allocated a plot of land sued a person who encroached upon it in

trespass. The person who sued entered into possession unlawfully. The person who

was sued believed that the plot was his so after demolishing the structure put up by the

other party he proceeded to erect a cottage thereon. The Court considered whether

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trespass could be committed in the circumstances and if so whether there were any

defences open to the tortfeasor.

Held:

a) Although in law neither of the two parties had a better title than the other, the

foundation of an action for trespass to land is possession, and it is not necessary that

the plaintiff’s possession should be lawful. (b) Since Omari had actual possession

before the demolition and the subsequent construction by Jela, Omari's action was

proper. (c) One of the defences against an action for trespass is a claim by the

defendant that he had a right to the possession of the land at the time of the alleged

trespass or that he acted under the authority of some person having such a right.

Lack of permission or authority

The allege tortfeasor should be having neither (express nor implied) nor statutory

authority.

In order to claim and win a case in trespass, it is not necessary to prove that the plaintiff

has suffered any damage or loss. This is one of the major differences between an action

in trespass and actions in Negligence and Nuisance where loss and damage have to be

proved. For this reason it is often said that trespass is actionable per se. [Page 299

BEARDSMORE, V., and COX, A., Opinion Writing and Drafting in Tort, Cavendish

Publishing Limited, 1996]. The Tort is actionable per se i.e. actionable without proving

damage. Where the defendant's entry is intentional ie he consciously sits, walks, rides or

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otherwise places himself upon the plaintiff's land, he will be liable in trespass and it is no

defence that he honestly believed that he was on his own land. Where the entry is

unintentional, e.g. X's car skids off the road onto plaintiff's land, here the plaintiff cannot

recover in trespass.

The tort of trespass to land protects a person's possession of land against wrongful

interference. It stems from the writ of trespass quare clausum fregit and has the same

elements as other forms of trespass. It involves only direct interferences with the Plaintiff's

possession of land, is actionable without proof of actual damage.

5.1.2 DEFENCES OF TRESPASS TO LAND

The following defences are available in an action for trespass:

(a)Justification

If the entry onto another person's land was granted by a licence or agreement or custom,

this is complete defence. It is also in some circumstances justification if the trespass was

to abate a nuisance, for example, entry to stop the spread of fire. If however a licensee

remains on the land after his licence is revoked or expires, he or she becomes a

trespasser. [Page 301 BEARDSMORE, V., and COX, A., Opinion Writing and Drafting in

Tort, Cavendish Publishing Limited, 1996]

(b) Necessity

This defence is not much favoured by the courts. The defence will only be accepted if the

defendant can show that it was necessary to enter onto another person's land to preserve

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life or property. [page 302, BEARDSMORE, V., and COX, A., Opinion Writing and Drafting

in Tort, Cavendish Publishing Limited, 1996].

COPE V. SHARPE [1891] 1 K.B. 496

The defendant entered the plaintiff’s land to prevent the spread of fire to the adjoining

land over which the defendant’s master had the shooting rights. Since the defendant’s act

was considered to be reasonably necessary to save the game from real and imminent

danger it was held that the defendant was not liable for trespass.

(c) Statutory authority

A number of Written Laws give a right of entry onto property of another person. [page

302, BEARDSMORE, V., and COX, A., Opinion Writing and Drafting in Tort, Cavendish

Publishing Limited, 1996].

(d) Right of possession of the land

Under this defence, the defendant is required to show that at the material time he/she

had a right to the possession of the land or that he acted under the authority of some

person having such a right. Joshua Shija Kisendi v. Paulo Katoto and another [1986] TLR

11, the defendants were in occupation of the premises in suit as lawful occupiers or as

licensees or with a deemed right of occupancy, when the land officers allocated the same

premises to the plaintiff’s without having first evicted the former. The court held that the

defendants were not trespasser.

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Read the following cases

JOSHUA SHIJA KISENDI V. PAULO KATOTO AND ANOTHER [1986] TLR 111

The plaintiff was on 1/7/1978 granted a right of occupancy over a plot which was

occupied by the defendants either as licencees or under a deemed right of occupancy. In

1977 he sued the defendants for trespass which he claimed started in July, 1975.

Held: Since prior to 1/7/1978 the defendants were in lawful occupation of the said plot

either as licencees or with a deemed right of occupancy when the suit was filed in 1977

there was no cause of action

(e) licensees/permission

(f) Jus tertii (a person claimed is not having a better title.)

5.1.2 REMEDIES

(a)Injunction

A perpetual injunction could be granted where circumstances demand so in Moya Drift

Farm Ltd v. Theuri (1973) E.A. 114 SPRY. VP (CA), The Court of Appeal granted the

same in the context of the dispute between the appellant and the respondent that was

going on. The appellant had sued the respondent claiming that it was the registered

owner of the land on which the respondent was trespassing and who had refused the

appellant entry.

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(b) Damages

Damages mean monetary compensation. This is a second possible remedy, which a victim

of trespass could seek in a court of law. The amount to be granted depends on the claim

itself.

(c) Self help

(This is done by using reasonable force)

5.2 TRESPASS TO CHATTELS OR GOODS

5.2.1. MEANING OF TRESPASS TO GOODS/CHATTELS

Trespass to goods is the direct interference of goods in the possession of another person.

This interference should be directed to the person who is in possession.

This group of Torts protects the possessor of a chattel from wrongful interference

therewith: Read KODILINYE, G., pages 190-194.

Or

Trespass to chattels or goods

This Tort may be defined as a direct and wrongful interference with a chattel in the

possession of the plaintiff, such interference being either intentional or negligent. The

interests of the plaintiff whom the tort protects are:

(i) His interest in retaining possession of the chattel;

(ii) His interest in the physical condition of the chattel; and

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(iii) His interest in protecting the chattel against intermeddling.

5.2.2 Trespass to Chattels may take various forms such as follows;

a) By destroying/damaging the goods.

b) By taking/removing (moving) the goods from one to another without permission

merely using goods, or wrongfully moving them from one place to another.

Illustration

D is a lecturer at Y Institute. He has a very huge home library. Z during the weekend

visited D but he could not find him. Failing to find his host Z went into D’s library where

he pulled out the books out of the shelves and left them scattered on the table. In this

situation D can sue Z for damages for trespassing on his books.

NB; Interference should be direct and not consequential;.

5.2.3 NOTE: ELEMENTS OF TRESPASS TO GOODS/CHATTELS

Direct interference

Direct physical interference without lawfully justification is a trespass. The wrong may be

committed intentionally, negligently, or even by an honest mistake. A person driving away

the car, believing that to be his own, will be liable in trespass to the person in possession

even though the latter doesn’t have a good title to the same.

KIRK V. GREGORY [1876] 1 EX

“…In this case on A’s death, his sister-in-law removed some jewellery (objects such as

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rings) from the room where his dead body was lying, to another room under a reasonable

but mistaken belief that the same was necessary for its safety. The jewellery was stolen

from the place where it was now kept. In an action by the executors of A, A’s sister-in-law

was held liable for trespass to the jewellery…”

Without lawfully justification

When the interference is without any lawfully justification, an action for trespass lies.

There is justification when the defendant has seized the plaintiff’s goods or cattle under

the exercise of his right of distress damage feasant. There is also a justification when the

damage to another person’s goods is caused in exercise of the right of private defence.

CRESSWELL V. SIRL [1948] 1 K

“…In this case the defendant’s son shot the plaintiff dog because the dog was attacking

his sheep and pigs. In an action by the plaintiff, the Court of Appeal held that it was for

the defendant to justify the killing and he could do the same by proving that the dog was

either attacking the animals or there was an imminent apprehension of the attack and also

that shooting was the reasonable means of preventing the invasion…”

Inevitable accident has also been held to be a good defence to an action for trespass to

goods by the case of NATIONAL COAL BOARD V. EVANS [1951] 2

“…In this case the defendant, a country council, had employed a certain independent

contractors to make excavations on their land. Beneath the land were laid some electric

cables by the plaintiff’s predecessor in title of which the defendants had no knowledge.

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The contractors not being having aware of the underground cables, the same were

damaged during excavations. The damage having been caused without any fault on the

part of the defendants, they were held not liable…”

READ: Sheldrick v. Abey (1793) 170 ER 278; or Heyden v. Smith (1610) 123 ER 970;

Like other forms of trespass, trespass to chattels is actionable per se, ie., without proof of

actual damage. Like trespass to land, trespass to chattels protects possession rather than

ownership. The Plaintiff in an action for trespass to a chattel must have had actual

possession of it at the time of the interference by the defendant:

READ: Ward V. Macauley (1791) 100 ER 1135 or Keenan Bros Ltd V. CIE (1962) 97 I

LTR 54

5.3 CONVERSION

5.3.1 MEANING OF CONVERSION

Conversion is intentional dealing with the goods which is seriously in inconstant with the

possession or right to immediate possession of another. Or

Conversion is a positive and intentional act of interferences with a person's legal

possession or right to the immediate possession of goods. As with detinue, the tort of

conversion does not stem from the writ of trespass and therefore does not require that

the legal injury result directly from the Defendant's conduct. As a practical matter, the

legal wrongs sanctioned by detinue and conversion invariably flow directly from the

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Defendant's conduct. Conversion was originally known as trover and is of much later origin

than either trespass or detinue.

Read Fleming, Law of Torts, 7th ed. (1987) p. 50 for more understandings.

Conversion does not protect the ownership of chattels, but regulates rights of possession

of chattels. The essence of conversion is not a wrong against the owner in respect of its

ownership. It is an infringement of the right of control or the right of possession which is

usually an incident of ownership but not always. An owner of goods who has given up

possession and the right to possession of goods for a term ordinarily lacks the interest to

sue in conversion during that period of time.

A "conversion" is the positive and intentional interference with legal possession or the

right to immediate possession. Mistake as to the legal or factual consequences of one's

conduct is not a defence if the physical consequences were intended. There have been

several cases where well-intentioned defendants were held liable in conversion because

their conduct resulted in a denial of the possessory rights of others. Can Laboratory

supplies Ltd vs. Engelhard Industries of Can. Ltd (1979) 97 D.L.R. (3d) 1 (SCC); 384238

Ont. Ltd v. Can (1983) 8 DLR (4th) 676 (Fed. CA); Hollins V. Fowler (1875) LR 7 HL 757;

Lancashire & Yorkshire Ry V. MacNicoll (1918) 88 LJKB 610; Marfani & Co v. Midland Bank

Ltd [1968] 1 WLR 956 (CA).

In order to be actionable, a conversion must result from a positive act of the defendant

which denies or seriously interferes with the claimant's possessory rights. A destruction or

loss of chattels occurring as a result of the Defendant's negligence or passivity is not

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actionable as a conversion. The Defendant's conduct must demonstrate a dominion over

the chattels. Not only must the defendant's act he a positive one, but the conversion must

have been intended. It is not sufficient if the loss or destruction resulted from mere

carelessness.

READ: KODILINYE, G., pp. 195-205:

5.3.2 Conversion may be committed in different ways; (types of conversion)

(a)Conversion by wrongful taking of goods

Fouldes V. Willoughby (1841) 151 ER 1153 or Bushel V. Miller (1718) 93 ER 428;

(b) Conversion by using another’s item as if is your own or by using the

goods without lawfully justification.

Petre V. Heneage (1701) 88 ER 1491 or Penfolds Wines Ltd V. Elliot (1946) 74 CLR 204;

(c) Conversion by receiving goods

Hollins V. Fowler (1875) LR 7 HL 757, 767;

(d) Conversion by Destruction , Compensation or alteration

Hollins V. Fowler, or Simmons V. Lillystone (1853) 155 ER 1417;

(e)Conversion by wrongful Transfer of Title Possession or Dispose of goods

without a title.

Hollins V. Fowler or Parker V. Godin (1728) 93 ER 866.

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6.0 NEGLIGENCE

6.1 MEANING OF NEGLIGENCE

The term negligence has been denied by different authors from different sources, one

of the attempts was made by Alderson B, in the case of BLYTHE V. BIRMINGHAM

WATER WORKS [1856] 11 EX 784 who defined negligence as follows;

“…omission to do something which a reasonable man would do or doing something

which a prudent and reasonable man wouldn’t do…”

The above definition was considered not to be comprehensive enough in capturing the

whole concept of negligence. Then an improved and now much more frequently cited

nationalization was made by Lord Atkin in DONOGHUE V. STEVENSON [1932] AC

562 as follows;

“…You must take reasonable care to avoid acts or omissions, which you can reasonably

foresee, would be likely to injure your neighbour…the answer seems to be persons who

are so closely and directly affected by my act that 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…”

6.2 ELEMENTS OF NEGLIGENCE

In order for a person to succeed for negligence he must prove three elements as

follows;

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(i) Duty of care.

(ii) Breach of duty of care.

(iii) Damage.

6.2.1. DUTY OF CARE

Before 1932 there was no general duty of care and courts were very restrictive to

impose liability on cases of negligence. But this doesn’t mean there was no negligence

since for instance road users, occupier’s premises were having duty of care before

1932. The case of Donoghue v. Stevenson [1932] established the principle of

neighborhood by lord Atkin that “You are to love your neighbour i.e. a persons who are

so closely and directly affected by my act that I ought 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 case expands the presence of duty of care in various aspects. In

1970’s and 1980 the scope of duty of care was expanded by courts. Any person can be

liable for negligence as the result of his act unless for policy reasons.

For policy reasons the court look at the following (Factors considered by the

court in imposing duty of care).

(i) Which part is the best able to afford the loss. Here the deep pocket principle is

applied.

(ii) Will be there flood of claims.

(iii) Will or whether imposing duty of care will encourage people to take more care.

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(iv) Are there moral reasons for imposing a duty.

In 1990 through the case of CAPARO V. DICKMAN [1990] the court laid down three

stages test to determine whether a duty of care exist or not but before these stages the

court would ask itself the question “whether a duty of care has been established

previously by case laws”

If the answer is yes then it is obvious that there is a presence of a duty of care and the

need to go through those stages is not important but if the answer is no then three

stages should be tested to determine whether there is duty of care or not. Those stages

are as follows;

a) The harm or loss or injury must be reasonably foreseeable.

You can’t impose a duty of care where the injury imposed was not reasonably

foreseeable.

HOME OFFICE V. DORSET YATCH CO. [1970]

Facts: Boys who were taken on a trip to Brown Sea Island by their officers escaped

one night and they damaged the claimant yard. The claimant sued the home officers for

negligence.

Held: The home officer was liable because owed a duty of care to the claimant.

Important: There was a special relationship between the boys and the home officers.

Note: The harm must not be remote i.e. couldn’t been foreseeable.

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b) Whether there was a sufficient relationship or proximity between the

claimant and the defendant.

Proximity means nearness or closeness. Proximity doesn’t necessarily means physical

closeness between the claimant and the defendant but the legal closeness between the

two such as personal relationship between the two, rank of time between the events.

The level of proximity differs from one case to another depending on the type of

damage suffered. Example where loss suffered is economic loss then in that particular

situation the claimant must prove the existence of close relationship between him and

the defendant.

c) It must be just and fair and reasonable to impose a duty of care.

This goes hand with the public policy/morals and public interest.

ASHTON V. TURNER [1981]

Facts: Three drunken men had committed burglary and were seeking to escape in a

car which was owned by one of them. The car crashed and the claimant who was one

of the passengers was injured and brought a claim for negligence against the driver.

Held: The driver was not liable because of public reasons.

Note: It is important to note that if those two stages as discusses before on how to

determine the existence of duty of care succeeded but the last failed then no duty of

care can arise at all.

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PURE ECONOMIC LOSS

Where there is pure economic loss then discovery of damages through negligence is

very limited however in contract there is no problem. There is pure economic loss

where the injury is not a result of breach of contract or damage to property. There are

circumstances which a pure economic loss may occur as follows;

a) A person suffered a loss as the result of damages of property which is owned by

another person.

SPARTAN STEEL V. MARTIN AND CO. CONTRACTORS LTD

Fact: The claimants operated a stainless steel factory. The defendant who digging the

road outside the factory negligently cut a power cable. The factory was without

electricity for 14 hours. The loss of electricity caused damage to a number of melts in

the furnace. Also at the time of power cut and prevented four new melts that would

have been made from being processed. Held: The claimant was entitled to financial

loss caused by physical damage but no entitled compensation to four melts which didn’t

take place.

SPECIAL CASES OF PURE ECONOMIC LOSS

In these circumstances the court may impose a duty of care. Where court has found

out that there is close relationship between the claimant and defendant.

If the claimed is someone which the defendant could reasonably foresee in his mind

that could by directly affected by his act then the duty of care is imposed. Example of

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proximity rule occurs such as a lawyer and beneficiary of the will.

ROSS V. CAUNTERS

Facts: Solicitors sent a testator his will to sign but failed to inform him that the will

shouldn’t be witnessed by the spouse of the beneficiary. The will was returned signed

and witnessed by the spouse. The solicitor didn’t notice that the will was signed and

witnessed by the beneficiary’s spouse. When the testator died the intended beneficiary

was unable to claim under the will. That is purely economic loss.

Held: The solicitor was liable due to the closeness or proximity between the solicitor

and the beneficiary.

PURE ECONOMIC LOSS AS THE RESULT OF NEGLIGENT MISSTATEMENT

The claimant sometime may succeed to claim pure economic loss resulted from

negligent misstatement however before 1964 loss resulted from negligent misstatement

was only available in the tort of deceit. The claimant must prove the forseeability of the

injury and close relationship.

Where the defendant understood to exercise reasonable care in making a statement

then the defendant would be liable if he make a statement which causes loss to another

person. But the defendant must process special skills in particular aspects so as to

impose a duty of care. In issues of consideration in matters of negligent misstatements

different factors must be considered as follows;

(i) Whether the defendant knew the identity of the claimant,

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(ii) Whether the statement given or advices was connected to the specific

transaction.

(iii) Did the defendant anticipate or expect the claimant to rely on his statement.

(iv) Whether it was reasonable for the claimant to rely on the statement given by the

defendant.

Note: Making a statement without prejudice or making a statement with disclaim for

any negligence then the person is not liable.

PSYCHIATRIC INJURY

Psychiatric injury is also known as nervous shock. This is the form of person injury but

it is not physical injury. In this case it is not easy to determine whether a person suffer

damage in case of psychiatric injury. In order for claimant who suffered psychiatric

injury to succeed evidence should be given such that he suffered serious psychiatric

injury recognized medically i.e. known as “Post traumatic stress disorder” Sometimes a

person may suffer ordinary grief, anxiety, fright but these are not recognized as

psychiatric injury. Also sometimes a person can suffer psychiatric injury as a result of

physical injury. In this case there is no problem however the problem arises on a

person who suffered a pure economic psychiatric injury without any physical injury. This

happen to the person who witnesses an accident.

In case of pure psychiatric injury there is a restriction. There are restrictions between

victims of psychiatric injury. There are two distinctions of psychiatric injury and that is;

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(i) A primary victim.

(ii) A secondary victim.

A PRIMARY VICTIM

A primary victim is a person who was under actual threat of bodily harm or reasonably

believed him/her to be so as the result of negligent event.

DULIEY V. WHITE

Facts: The claimant, a pregnant woman who was working behind the bar at a pub. The

defendant employee was driving a horse and cart through the window of the pub

causing the claimant to fear for her safety hence suffers nervous shock and miscarriage

of her baby (losing her baby).

Held: The claimant recovered damage for nervous shock because it was caused by real

and immediate fear of her safety.

PAGE V. SMITH

Facts: The claimant was involved in a car crush which was caused by the defendant’s

negligence. Minor damage was caused to the car and the claimant suffered no physical

injury however the claimant suffered from re-occurrence of ME i.e. “myalgic

encephalomyelistis” transferred as psychiatric illness.

Held: Duty of care was owed to claimant if some personal injury either physical or

psychiatric injury was foreseeable as the result of negligent accident. The claimant

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succeeds because the injury was foreseeable and the defendant owed a duty of care

towards the claimant.

RESCUERS

In England before 1989 the rescues were categorized as primary victim then a duty of

car was owed to them in case they suffer damage. Therefore injury from their work was

to be compensated.

CHADWICK V. BRITISH RAIL [1967]

Facts: The claimant was a volunteer rescuer at the sea of rail disasters where 90

people died. He suffered psychiatric illness as the result of experience nature while he

was rescuing. He sued the British rail for negligence.

Held: Duty of care was owed to the claimant (rescuer) since it was reasonably

foreseeable that the volunteer should come and assist at the sea and could suffer

mental illness as the result of accident.

WHITE V. CHIEF CONSTABLE SOUTH YORKSHIRE [1999]

Rescuers will only be classified as primary victim if he was/reasonable believed himself

to be in danger of physical injury.

Fact: As the result of the negligent failure of the police to control admission to the

Hillsborough stadium, many people were crushed against railings of the barriers. So 95

people died and several were injured. The claimant was a police officer who took part in

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the operation of rescuing as the result he suffered post traumatic stresses disorder. He

sued the chief constable.

Held: No duty of care owed by chief constable to the claimant because the claimants

were not being exposed to danger or fear of danger.

SECONDARY VICTIMS

A secondary victim is a person who suffers psychiatric injury/nervous injury as a result

of witnessing an accident or it’s immediately aftermath.

HINZ V. BERRY

Facts: The claimant and her husband and children were travelling in a van when they

stop in a lay-by. The claimant went on the other side of the road with one of their

children to pick flowers. She saw a car driving into the van where she had left her

husband and children. She witnessed the accident in which her husband died and

several children died hence the claimant suffered psychiatric injury and sued the

defendant.

Held: The claimant succeeded for psychiatric injury as the result of witnessing the

accident.

IMMEDIATE BEFORE THE ACCIDENT

HAMBROOK V. STOCKES BROTHERS

Facts: The claimant suffered psychiatric injury and died eventually after he saw the

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defendant out of control of a lorry and subsequently he heard a collision which made

him reasonably fear for safety of her children whom she had just left them at the

bottom of the hill outside the school hence suffered psychiatric illness and was intended

to damage.

Held: It was held that damage was allowed basing on psychiatric injury that damage

caused by real and fear of her family.

IMMEDIATE AFTER THE ACCIDENT

There are limitations in case of secondary victims since not all actions under it will be

awarded compensations. Those limitations have been provided in the following case.

ALOCK V. CHIEF CONSTABLE SOUTH YORKSHIRE [1991]

The following are limitations for secondary victims.

(i) A claimant must establish a close tie of love and affection with a primary victim (

that is person involved in the accident)

If no close tie and affection therefore the defendant cannot reasonably foresee the

harm. The presumption is that love and affection lies to children, wife and husband but

in other aspects the contrary must be proved.

(ii) Geographical proximity to the accident or its aftermath.

Saw the accident either aftermath by using human sense.

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(iii) A medically recognized psychiatric injury. That the claimant should be proved that

he or she suffered a medically recognized psychiatric injury such as post traumatic

stress disorder.

6.2.2 BREACH OF DUTY

It is not sufficient for a claimant or plaintiff to prove that there is a duty of care but also

he needs to go further and establish that the defendant breached that duty. The

plaintiff should prove that the defendant did something which a reasonable man

couldn’t do under the circumstances. The test is an objective tests that;

 There should be standards of care such every person should act according to those

standards.

 The defendant must act with a degree of care and skill expected from a reasonable

man.

NETTLESHIP V. WESTON

Facts: The claimant agreed to teach the defendant on how to drive. On the 3rd lesson

the defendant hit a lamp post and the claimant was injured and he was claiming

damages for negligence.

Held: Defendant owed a duty of care to the claimant; the duty of care that a learner

driver owed to the passengers and other general public was the same as any other

driver. (Lack of an experience is not an issue).

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Note: The standards of care which is required for professionals person is the same

standards that a reasonably competent person in that professional could show.

PHILLIPS V. WHITELY

Facts: The claimant contracted the diseases after having her ear pierced by the

defendant.

Held: No liability to the defendant because the standards of care required from the

defendant is one which was done that is why she was not liable. In other words is that

the standards of care required was that of a skilled and competent man which a

defendant doesn’t have.

Factors taken into account by courts in deciding whether there is a breach of

duty of care.

1. There was a probability of harm being caused to the claimant.

Where there is a probable likelihood of harm being caused to the claimant by the

defendant, there is breach of duty of care when the harm occurs.

BOTTON V. STONE

Facts: A person was a player in a cricket ground owned by the defendant while a

person playing in that ground hit cricket ball over the 17 foot high fence. The claimant

who was in the street outside the cricket ground was hit by the ball had been hit

outside the fence 6 times in 30 years. Held: The defendant was not liable because the

risk was foreseeable but very minimal probability. The defendant had taken reasonable

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precautions of the risk of ball going outside. So the risk of the ball going outside the

cricket ground was so small that is why defendant was not liable.

2. Potential seriousness of the harm

Where the risk of injury/harm is small but the gravity of injury is great if it occurs, it is

more likely that the defendant shall be liable if injury occurs.

PARIS V. STEPNEY BOROUGH COUNCIL

Facts: The claimant was blind in one eye and the defendant was aware of this

disability, the claimant was working in the defendant’s garage under a vehicle. A piece

of metal went into his good eye and he becomes blind completely. At the time it was

happened it was not standard to issue goggles.

Held: The potential seriousness of damage to the claimant was high/serious than other

workers. Therefore defendant was liable for not providing goggles to the claimant.

3. Practicality/cost

In this aspect we look if it is simple to take precautions and the cost of avoiding the

harm is not out of all proportion to the reduction of risk then the defendant would have

breached his duty if he fails to take actions.

HALEY V. LONDON ELECTRICITY BOARD

Facts: The claimant who was blind man falls into the hole which had been dug at a

pavement by the defendant. The defendant had taken pre-cautions to put a sign/

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warning to alert that there is a hole.

Held: The court ruled that the precautions taken was sufficient for sighted person and

not a blind person and was unforeseeable that could walk in the street. The defendant

was held liable because it was not costful to take precautions compared to the harm or

injury suffered.

LATIMER V. AEC

Facts: As the result of heavy rainfall the flow of the defendant’s factory become very

slippery. The defendant covered most of the flow with sawdust. The claimant sliped on

the flow and was injured while using the floor.

Held: The defendant was not liable because the only remaining precautions was to

close down the factory therefore this was not practical given on the side of the risk

therefore the defendant was not liable.

4. Value to the society

The usefulness of the defendant was trying to achieve. The usefulness of the

defendant’s action to the society. If you taken reasonable care, the court may not hold

responsible by looking at the seriousness of the action and the value of your action.

WATT V. HERTFORDSHIRE COUNCIL

Facts: The woman was trapped under a lorry and therefore various services were

needed to get lifting jack. They transported it on an ordinary lorry, on their way the

lifting jerk slipped causing injury to claimant. Claimant sued his employer.

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Held: No liability because the wak was reasonably.

6.2.3 DAMAGE

(Res ipsa Loquitur-simply means the things speaks for itself)

This term is used in negligence where the plaintiff had to prove that the defendant has

breached the duty of care. Res ipsa loquitur that means there are sufficient evidence to

show that the defendant has breached the duty. Therefore the burdens of proof shift to

the defendant to prove against the allegations.

Damage

The plaintiff must prove that he has suffered damages recognized by the law as the

result of defendant’s negligence. In damage the plaintiff will have to show two things as

follows;

(i) It is the defendant’s act that resulted to damage in question (it is the defendant

who caused that damage).

(ii) To prove the issue of forseeability of the harm.

(The damage suffered was reasonable foreseeable) the damage incurred by the plaintiff

was not too remote. Since if the damage suffered is too remote then the issue of

remoteness of damage comes to apply.

BUT FOR TEST (CAUSAL LINK)

But for test or causal link means the plaintiff should prove that there is a causal link

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between the defendant’s act and damage that has been incurred by the plaintiff. Would

the claimant had suffered loss for the defendant’s negligence or act? If the answer is no

then no liability but if the answer is yes but the loss was not direct to negligence of the

defendant then no liability.

BURNETT V. CHELSEA & KENSINGTON HOSPITAL MANAGEMENT COMMITTEE

Facts: A widow sued the hospital for negligence after her husband died having

attended the hospital in the evening and had been sent home by a doctor without being

examined. The husband died and the widow sues the hospital for negligence. Here the

hospital has a duty towards the deceased and breached the duty for sending him back

home without being examined. The issue raised by the court was whether the death of

the husband was the result of the hospital’s negligence due to breach of duty?

Held: No liability, his death was not a result of the breach of duty since the cause of

death was arsenic poison. Therefore if he would have been attended he will have died,

also they were no antidote for that poison.

MULTIPLE CAUSES

Sometimes they may be a problem in establishing loss where the defendant’s act was

not the only factor which caused injury in question but various numbers of factors or

actions of other people. The defendant will be liable if his action materially contributed

to the loss in question. If it is the defendant’s action which significantly exposed the

plaintiff to risk then the defendant will be liable even if there are actions of other

people.

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MCGHEE V. NATIONAL COAL BOARD

Facts: The claimant was exposed to brick dust during the course of his employment.

The employer didn’t provide him with washing facilities after work. After work the

claimant went home covered with dust as the result he developed disease dermatitis. It

was accepted that the claimant expose to dust was not a breach of duty. The defendant

failure to provide adequate washing facilities, no evidence that the claimant would have

suffered dermatitis even washing facilities was provided.

Held: However the defendant was liable and the House of Lords noted that a

defendant may be liable in circumstance where a breach of duty materially increased

the risk of a particular harm to the claimant.

REMOTENESS OF DAMAGES

Damage suffered by the claimant must not be remote but it must be reasonable

foreseeably. The test is objective test. A defendant will only be liable for the injury

which any reasonable man person would have seen.

EGGSHELL SKULL RULE/PRINCIPLE

This is the principle that the defendant must take his victims as he fights him. Or

“Take your victim as you find him”

If a victim has a certain weaknesses and as the result of defendant’s negligent act he or

she suffers harm. The defendant would be liable to the full extent of injury suffered by

the claimant.

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SMITH V. LEECH BRAIN COMPANY LTD.

Facts: The claimant was splashed on the lip with moltern metal due to his employer’s

negligence he suffered a minor burn because his lip was in precancerous conditions.

The burner activated cancer which later died.

Held: The court decided that although the only foreseeable was burn the defendant

was liable for death because a normal person would have suffered some harm.

Note, this apply also in Psychiatric Injury.

INTERVENIENT ACT

“Novus Actus Interviniens”

The situation of intervenient act usually applied in circumstances where the negligence

of the defendant has triggered a sequence of event leading to the harm suffered by the

claimants. This intervenient act may be the act of claimant himself or the act of the

third party over whom the claimant has no control. The new act, the court will have to

decide that the intervining act is serious to be the cause of damage rather than the

original act. The defendant who injured the claimant who had already been injured will

only be liable in so far as his act increases the pre-existing injury.

MCKEW V. HOLLAND

Facts: The defendant negligently injured the claimant’s leg as the result the claimant

leg was liable to give way. The claimant attempted unassisted to descend a steep flight

of stairs without a banister. As the result he fell down and suffers additional injury.

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Held: The defendant was not liable in this case for additional injury because the

claimant had acted unreasonably and this contributed a breach in the chain of

causation. The defendant was liable to the pre-existing conditions.

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7.0 GENERAL DEFENCES IN TORTIOUS LIABILITY

7.1 VOLENTI NON FIT INJURIA

When a person consents to the infliction of some harm upon himself he has no remedy

for that in tort. This has been explained in the case of R V. Donovan [1934] ALL E.R

REP 207

In case the plaintiff agrees to suffer some harm he is not allowed to complain for that

and his consent severs as a good defence against him. No man can enforce a right

which he has voluntarily waived or abandoned. (Salmond, Torts, 14th Ed, at page 47)

Consent to suffer harm may be expressed or implied. When you invite somebody to

your house you cannot sue him for trespass nor can you sue the surgeon after

submitting to a surgical operation because you have expressly consented to these acts.

Also no action for defamation can be brought by a person who agrees to the publication

of a matter defamatory to himself. (CHAPMAN V. LORD ELLESMERE [1932] ALL

ER 221)

For defence of consent to be available; the act causing the harm must not go beyond

the limit of what has been consented.

Example 1: A player in a grave of hockey has no right of action if he hit while the

game is being lawfully played. But if there is a deliberate injury caused by another

player the defence of violent can’t be pleaded.

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Example 2: If a surgeon negligently performs an operation he can’t avoid the liability

by pleading the defence of consent.

KHIMJI V. TANGA MOMBASA TRANSPORT CO. LTD [1962] E.A. 419

In this case the action for negligence failed both in the trial and on appeal because the

courts were satisfied that the deceased consented to the risk. The material facts of the

case were as follows; the deceased was the passenger in a bus, which was held up by a

swollen driver. The passengers pressed the driver to cross the river, which he was

unwilling to do. After some persuasion he agreed to try. The bus met some obstacles

and got stuck. The driver, conductor, some other passengers managed to cross and

reached the opposite bank. The body of the deceased was found next day some four

miles downstream. It could be gleaned from the above case that for “Volenti” to

operate two conditions must be fulfilled that firstly the plaintiff was aware of the risk

and took it with full knowledge example by choosing to walk under falling masonry

where there is a warning notice. Secondly the plaintiff must have been free to choose

whether or not to accept the risk. If she has no alternative but to run the risk example

where there is no other way out, the defence will fail. Knowledge of the existence of

the risk is insufficient: there must be evidence of positive consent to run the risk. It is

because of these requirements that a plea of volenti by employer sued by employee will

rarely succeed. The employee has no choice but to run the risk, if she doesn’t she

may looser her job. Therefore the degree of economic prevents there being true

consent.

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7.2 REMOTENESS OF THE DAMAGES OR THING

The act is the main factor to cause injury but if there is no connection between the acts

caused to the defendant then no damages can arise.

7.3 NOVUS ACTUS INTERVENES OR INTERVENING ACT

If the plaintiff suffered loss resulting of negligence act of the 3 rd party or the act of

himself therefore the chain of causation will be broken.

EXAMPLE: Plaintiffs got an accident as the result of the negligence of the plaintiff and

the goes to the hospital for medical treatment but unfortunately the plaintiff lost his/her

leg as the result of doctor’s negligence. So the defendant will be liable only for his

negligence taking out the negligence of the doctor.

7.4 PLAINTIFF THE WRONGDOER (“Exturpi causa non oritur action”)

Under the law of contract, one of the principles is that no court will aid a person who

found his cause of action upon an immoral or illegal act. The maxim “Exturpi causa non

oritur action” which means immoral cause no action arises. It means that if the basis of

the action of the plaintiff is an unlawful contract he will not in general succeed to his

action. Example an agreement to pay the prostitute it is illegal and the plaintiff can’t

sue if the prostitute breaches a contract simply because from the beginning the plaintiff

was a wrongdoer through entering an illegal contract hence not enforceable under the

law.

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7.5 INEVITABLE ACCIDENT

Accident simply means an unexpected injury and if the same couldn’t have been

foreseen and avoided, in spite of reasonable care on the part of the defendant it is

inevitable accident. Inevitable accident is a good defence in tort if the defendant proves

that he neither intended to injure the plaintiff nor he could he avoid the injury by taking

reasonable care.

STANLEY V. POWELL

In this case the plaintiff and the defendant who were members of a shooting party

went for a pheasant shooting. The defendant fired at a pheasant, but the shot from his

gun glanced off an oak tree and injure the plaintiff. It was held that the injury was

accidental and the defendant was not liable.

CRESSWELL V. SIRL (1948)

Fact: A dog owned by the plaintiff, Cresswell attacked during the night some in-lamb

ewes owned by Sirl. The dog had just stopped worrying the sheep and started towards

the defendant, who shot it when it was 40 yards away. The plaintiff sued in respect of

trespass to the dog (goods)

Held: the defendant was justified in shooting the dog if (i) it was actually attacking the

sheep; or (ii) if left the dog would renew the attack on them and shooting was the only

practicable and reasonable means of preventing renewal. The onus of justifying the

trespass lay on the defendant.

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An occupier of property may protect that property by using reasonable means, e.g.

barbed-wire fencing. He may not set spring gun to injure trespassers who came on to

his property, nor may he shoot at them, for such an amount of force is not

proportionate to the harm or threat.

7.6 MISTAKE

GENERAL RULE: As the general rule mistake whether of fact or law is generally no

defence to an action of tort. When a person willfully interferes with the right of another

person it is no defence to say that he had honestly believed that there were some

justifications for the same, when in fact no such justifications existed.

EXCEPTIONS TO THE GENERAL R ULE

A defendant may be able to avoid his liability by showing that he acted under an honest

but mistaken belief.

Example: The wrong of malicious prosecution, it is necessary that the defendant had

acted maliciously and without reasonable cause and if the prosecution of an innocent

man is mistaken, it is not actionable. Similarly man mistaken of a servant may put his

act outside the course of employment of his master and vicarious liability of the master

may not arise. Honest belief in the truth of a statement is a defence to an action for

deceit.

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7.7 NECESSITY

An act causing damage, if done under necessity to prevent a greater evil is not

actionable even though the harm was caused intentionally. In necessity, there is an

infliction of harm on an innocent person whereas in private defence, harm is caused to

a plaintiff who is himself a wrongdoer. Necessity is also different from inevitable

accident because in necessity the harm is an intended one, whereas in inevitable

accident the harm inspite of the best effort to avoid it.

COPE V. SHARPE [1891] 1 K.B. 496

The defendant entered the plaintiff’s land to prevent the spread of fire to the adjoining

land over which the defendant’s master had the shooting rights. Since the defendant’s

act was considered to be reasonably necessary to save the game from real and

imminent danger it was held that the defendant was not liable for trespass.

7.8 STATUTORY AUTHORITY/DEFENCE

The damage resulting from an act which the legislature authorizes or directs to be done

is not actionable even though it would otherwise be tort. When an act done, under the

authority of an act, it is complete defence and the injured party has no remedy except

for claiming such compensation as may have been provided by the statute. The

authority given by the statute may be either absolute or conditional. Absolute authority

allows the act even though it may cause harm to other persons; conditional authority

on the other hand merely allows the act provided that it cause no harm to others.

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Where the authority is imperative it is absolute and where the authority is permissive, it

is conditional only.

VAUGHAN V. TAFF VALE RAILWAY CO. (1890)

Fact: A railway company was authorized by statute to run a railway which traversed

the plaintiff’s land. Sparks from the engine set fire to the plaintiff’s wood.

Held: the railway company was not liable. It had taken all known care to prevent

emission of sparks. The running of the locomotives was statutorily authorized.

METROPOLITAN DISTRICT ASYLUM BOARD (1881)

Fact: Hospital authorities (appellants) were empowered by statute to erect smallpox.

The hospital was erected in a residential district where it caused danger of infection to

residents nearby.

Held: The erection of the hospital was a nuisance. The statute gave the hospital

authority general power to erect such hospitals but didn’t sanction the erection in places

where this would constitute danger. An injunction was granted. The statutory authority

was conditional.

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