University of Lusaka

School of Law

Unit 15 – General Defences and Remedies

Learning Objectives
• To understand the general defences that can be raised by the
defendant;
• To understand how a tort matter comes to an end;
• To understand the types of damages that can be awarded to the
claimant by the courts.
Introduction
• When a plaintiff brings an action against the defendant for a particular tort or
violation of legal right, resulting in legal damages, and successfully proves the
essentials of a tort, the defendant is held liable.
• However there are a few exceptions in which the defendant can plead some
defences which can help him in absolving from liabilities.
• In general, the burden, the burden of proof in establishing a defence will rest on
the defendant on a balance of probabilities;
• There is no limit on the number of defences a defendant may allege.
• Below listed are the General defences in tort.
Consent
• When a tort is committed, meaning that a defendant’s actions interfered with the
plaintiff’s person or property, a plaintiff’s consent will excuse the defendant of
the wrongdoing.
• Although a defendant’s conduct may be considered immoral, or harmful, if the
plaintiff allows these interferences to occur, then the defendant is not considered
to have committed a tort.
• Consent can be express or implied.
• For example, a person who is hit by the ball while watching a match in a stadium; the
general understanding is that when the person bought the ticket to watch the match
itself he agreed or consented to suffer any such damage or face any such risks and so
the players or stadium authorities are absolved from any sort of liability arising out
of such an accident.
• The defendant may also infer consent from the plaintiff’s actions the way any
reasonable man would. In some cases, silence and inaction may manifest consent
when it is reasonable to assume that a person would speak or act if he objected to
the defendant’s actions.
Cont’d
• The consent must be free; it is ineffective under certain conditions;
• if the plaintiff lacks the capacity to consent, is coerced into consenting, or
consents under false pretenses, the consent is not valid as a defence to the tort.
• Incapacity to give consent may arise due to factors such insanity, intoxication or
infancy;
• It may also arise due to temporary abnormalities like someone under the effect
of a drug or alcohol or someone who is in a very stressful situation, or due to a
permanent mental illness or disorder.
• Read Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112
• Consent is for instance a valid defence to an action for trespass to the person.
Cont’d
• The element of consent is one of the critical issues in medical treatment; A
doctor who treats without valid consent will be liable under the tort and
criminal laws;
• The law presumes the doctor to be in a dominating position, hence the consent
should be obtained after providing all the necessary information - Bethlem Royal
Hospital [1985] AC 871
• In the case of minors, parental consent will suffice for general medical treatment.
• Alternatively, the health professional may be sued for negligence -
Volenti Non Fit injuria
• Consent is usually expressed in law through the Latin phrase “Volenti non fit
injuria”. A direct translation of the phrase is, ‘to one who volunteers, no harm is
done’.
• The defence of volenti non fit injuria requires a freely entered and voluntary
agreement by the claimant, in full knowledge of the circumstances, to absolve
the defendant of all legal consequences of their actions.
• 1. Agreement to the risk
• 2. full knowledge of the nature and extent of the risk
• 3.voluntary choice by the claimant
Cont’d
• In Nettleship v. Weston[1971] 3 WLR 370 , Lord Denning said:
“Knowledge of the risk of injury is not enough. Nothing will suffice short of an
agreement to waive any claim for negligence. The plaintiff must agree expressly
or impliedly to waive any claim for any injury that may befall him due to the
lack of reasonable care by the defendant: or more accurately due to the failure
by the defendant to measure up to the duty of care which the law requires of
him”.
• Also, the plaintiff should have complete knowledge of the full nature and extent
of risk involved before giving consent. Lord Diplock in the case of Wooldridge v.
Sumner [1963] 2 QB 43 pointed out that:
• “The consent that is relevant is not consent to the risk of injury but consent to the
lack of reasonable care that may produce that risk… and requires on the part of the
plaintiff at the time at which he gives his consent full knowledge of the nature and
extent of the risk that he ran”.
Cont’d
• Further Reading:
• Eagle Charalambous Transport Limited v Gideon Phiri (1994) S.J. 52 (S.C.)
• Rees v The Attorney-general (1974) Z.R. 115 (H.C.)
• Nash v Maintenance And Installation Company, Zambia, Limited (1975) Z.R.
85 (H.C.)
Private Defence
• When a defendant tries to protect his body or property or any other person’s
property, harms another person by using reasonable force, under an imminent-
danger and where there is no time to report instantly to the authority, it is
Private Defence;
• The harm done should be proportional according to the nature of the
circumstances.
• where for example, a ferocious dog starts barking violently at you but doesn’t
bite. And then when it turns back and starts walking away, if you hit it or throw a
stone at it you cannot claim private defence;
• This is because the dog was no longer a threat to you after it turned away and
started walking back and so the act committed by you is wrong and cannot be
justified under the defence of private defence.
Cont’d
• Essentials
a) Imminent Danger
• There should be an immediate threat over the life or property of the
defendant or another person’s property in which there is no time to report to
the nearest authority. If the defendant is not able to contact that specific
authority, then he can start the private defence.
b) Proportional Force
• The defendant should apply a reasonable force. It should not be in excess of
what is required.
• Eg. If a thief breaks into the defendant’s personal property and tries to injure
the defendant by beating him with a rod, then the defendant should tackle
the thief using proportional force. If he is using a shotgun, then he can fire it
on thief’s legs instead of his chest/forehead or it would be unreasonable.
Cont’d
• In Lane v Holloway (1968) 1 Q.B. 379 - the court held that the retaliation should
be proportional to the attack. The court further stated that provocation is not a
valid defence to trespass to the person but it reduce the amount of damages
awarded to the claimant.
• Further reading:
• Bird v. Holbrook 130 eng. Rep. 911 (C.P. 1825).
• Morris v. Nugent7 C. & P. .57:2.
Necessity
• A defendant typically invokes the defence of necessity only against the
intentional torts of trespass to chattels, trespass to land, or conversion.
• Necessity knows no law; in order to avoid or prevent a great loss or harm, a
defendant can cause lesser harm that is justified.
• The act of the defendant may be not legal but if it is to avoid major damage then
he can plead this defence.
• Essentials
1) When the defendant acts to avoid a significant risk of harm;
2) His causing of harm should be justified.
Cont’d
• If A sees a small fire starting on a field nearby and trespasses B’s farm to reach
the place and extinguish it, he can claim the defence of necessity and he shall
have not committed trespass.
• In Leigh v. Gladstone(1909) 26 TLR 139- it was held that the forcible feeding of a
person who was hunger-striking in a prison served as a good defence for the
tort of battery.
• Further Reading:
• Airedale N.H.S. Trust v Bland [1993] A.C. 789
• Surroco v. Geary 3 Cal. 69 (1853)
Inevitable Accident
• Inevitable Accident is a mishap. Its occurrence cannot be prevented despite
taking any degree of care and attention by an ordinary and wise individual.
• Fardon v. Harcourt-Rivington (1932) 146 L.T. 392 – the court stated that people
must guard against reasonable probabilities but they are not bound to guard
against fantastic probabilities
• There was a major shift in the use of inevitable accident as a defence after the
rule of strict liability was evolved after Rylands v Fletcher; the plea of inevitable
accident lost its utility in cases involving accidents in any enterprise dealing with
hazardous substances or which is inherently dangerous.
• Read; -
• Stanley v Powell [1891] 1 QB 86
• Deutsch and another v Zambia Engineering And Construction Company
Limited (1969) Z.R. 161 (H.C.)
• Anthony Mwanza v Kagurusu Farming Enterprises Limited Kenani Musebo
2008/HP/715
Act of God
• Black’s Law Dictionary defines an act of God as “An act occasioned exclusively by
violence of nature without the interference of any human agency.”
• A very unusual act or an event which is the result of the natural forces such as
earthquakes, volcanic eruptions, floods, droughts, etc. is coined as Act of God or
‘Vis major’.
• It is beyond human imagination and could not be prevented by human
intervention.
• Essentials
1) The act should result from a natural force;
2) No human intervention;
3) Extraordinary in nature.
Cont’d
• Nothing can be said to be an act of God unless it is an occurrence due exclusively
to natural causes of so extraordinary a nature that it could not reasonably have
been foreseen and the result avoided.
• Tennant v Earl of Glasgow (1864) 2 M (HL) 22 -
Circumstances which no human foresight can provide against, and of which
human prudence is not bound to recognize the possibility, and which when
they do occur, therefore, are calamities that do not involve the obligation of
paying for the consequences that may result from them, fall under the
category of Act of God.
• Blyth v Birmingham Water Works Co - It was held that though frost is a natural
phenomenon, the occurrence of an unforeseen severe frost can be attributed to
an act of God, hence relieving the defendants of any liability.
Cont’d
• When a defendant pleads an act of God as an answer to liability, he may deny
that he was at fault;
• Other times D denies causation. He may concede that he was negligent but
contend that, even if he had taken reasonable care, the damage about which
the plaintiff complains would still have occurred and hence he should not be
held guilty for those damages.
• Suppose that D, an occupier, negligently omits to bring a dangerously
unstable fence on his property into repair. During a ferocious storm the fence
collapses onto his neighbor’s (P’s) house. P sues D in negligence.
• D relies on the defence of Act of God and brings unchallenged expert
evidence to show that the storm was so fierce that even a solid fence would
have given way. In pleading an act of God, D is not denying fault. He is denying
that his fault caused P’s damage.
Cont’d
• Further Reading
• Sichula and Another v Chewe (2000) Z.R. 56.
• Zambia Electricity Supply Corporation Limited v Redlines Haulage Limited
(1992) S.J.
When a plaintiff himself is the wrongdoer
• The law excuses the defendant when the act done by the plaintiff itself was illegal
or wrong.
• This defence arises from the Latin maxim “ex turpi causa non oritur action”
which means no action arises from an immoral cause.
• Where the maxim is successfully applied it acts as a complete bar on recovery. It
is often referred to as the illegality defence
• In the case of National Coal Board v England [1954] AC 403 - Lord Porter had
expressly located the ex turpi causa maxim in a public policy rationale.
• Thus, wrongdoing on the part of the plaintiff would not necessarily preclude him
from bringing a claim where the court could be satisfied that to provide redress
for the plaintiff would not offend against policy.
Cont’d
• This defence of ex turpi causa can be closely related to the legal maxims “jus ex
injuria non oritur” which means that no right can arise out of a wrong and
“Commodum Ex Injuria Sua Nemo Habere Debet” meaning that a wrongdoer
should not be enabled by law to take any advantage from his actions.
• The defence of illegality is close to the principle that one who approaches the
courts must come with clean hands and works on the logic that when a person is
doing a wrongful act he need not be helped by the state in getting damages as
this would essentially be against public policy.
• Further Reading:
• Pitts v Hunt (1991) 1 QB 24
• Ashton v Turner (1981) Q.B 137
 Statutory Authority
• If an act is sanctioned by a statutory enactment or a law passed by the
legislature, then the defendant cannot be held liable for the damages resulting in
the course of such an act.
• But the powers conferred by the legislature should be exercised with judgment
and caution so that no unnecessary damage is done;
• For example, if there is a railway line near your house and the noises of the train
passing disturbs then you have no remedy because the construction and the use of
the railway is authorized under a statute. However, this does not give the authorities
the license to do what they want unnecessarily; they must act in a reasonable
manner. It is for this reason that we see that there are certain guidelines that need to
be followed during construction of public transport facilities.
Mistake Cont’d
• The fact that the D made a genuine mistake is generally not a defence:
• The mistake of law: Not a defence in both civil and criminal cases;
• The mistake of fact: Not valid in torts
• Apart from these defences there are others too which are sometimes used;
• Death, for example, is now used as a defence only in cases of defamation, and
truth is widely used as a defence in defamation cases too;
• The defence of the act of the third party can function as causation denying
absent element defence. Consider the tort of private nuisance;
• the defendant can prevent the plaintiff from discharging his onus by
demonstrating that the nuisance was caused by a third party.
• Thus, defendants have been absolved of liability in nuisance in respect of
interferences on their land consisting of falling roof tiles and burning refuse on
the basis that third parties were responsible for creating them.
Contributory Negligence
• It is convenient to refer to contributory negligence as a defence, but it is not a
complete defence.
• Contributory negligence can be said to be behaviour that contributes to one’s
own injury or loss and fails to meet the standard of prudence that one should
observe for one’s own good.
• Contributory negligence of the plaintiff is frequently pleaded in defence to a
charge of negligence.
• Betty Kalunga (Suing as Administrator of The Estate of the late Emmanuel
Bwalya) v Konkola Copper Mines Plc (2004) Z.R. 40 (S.C.) - In case of
contributory negligence, the damages recoverable by the plaintiff are reduced to
such an extent as the court thinks just and equitable having regard to the
claimant’s share in the responsibility for the damage.
Cont’d
• Further Reading:
• S. 10 of the The Law Reform (Miscellaneous Provisions) Act Cap 74;
• Malawo (Male) v Bulk Carriers Of Zambia Limited (1978) Z.R. 185 (S.C.);
• Central Refrigeration Co. Ltd v The Attorney- General (1977) Z.R. 69 (S.C.);
• Davies v Swan Motor Co. Ltd [1949] 1 All E.R. 620.
Extinction of Liability
• In the extinction of a tort, the circumstances are such that the liability exists but
its remedy does not.
• The meaning of discharge of tort or liability is reaching an end of the tort.
• It is a process by which tort stops to exist and the wrongdoer is no longer liable.
1. Limitation of Actions
• The law prescribes a time limit within which an action must be brought before
the courts of law by the claimant.
• If the prescribed period is over (expired) the right of action is barred and the
remedy which was available ceases to exist;
• Delay defeats equity. The Law will not help those who were sleeping over
there rights for a pretty long time.
• The time limit is measured from the date of accrual of a right of action or
breach therein; if a matter is brought after the period within which the matter
should have been brought, the matter is said to be statute barred.
Cont’d
• For example actions for claims relating to personal injury due to negligence,
nuisance or breach of duty should be brought before the courts within three
years after the incident occurred – see s. 2 of The Law Reform (Limitation Of
Actions, Etc.) Act
• See:
• The Law Reform (Limitation Of Actions, Etc.) Act Cap 72
• The Limitation Act, 1939
• Bp Zambia Plc v Zambia Competition Commission and others(S.C.Z.
Judgment No. 21 of 2011).
• Zimba Jane Ndelemani Musanya (Co-Administrator of the Estate of Newton
Bwalya Musanya) v Musanya Henry Chola (Co-Administrator of Newton
Bwalya Musanya) 2009/HP/ 1182.
*The Two Acts above shall be posted on the student portal.
Cont’d
2. Judgment – a final judgment in a case will extinguish the right of future action
3. Accord and satisfaction
• Accord means an agreement in which a person agrees to accept some
valuable consideration. It is generally in exchange for the right of action that
he has against the other.
• Satisfaction states the actual payment of an amount of consideration. The
consideration can be in the form of money or compensation which is
accepted by a wrong person or his legal heirs.
• It leads to the settlement of the case and they do not proceed to the court.
Cont’d
4. Survival of Actions on Death
• On the death of any person all causes of action subsisting against or vested in
him shall survive against, or, as the case may be, for the benefit of, his estate
– see s. 2 of The Law Reform (Miscellaneous Provisions) Act Cap 74.
• The above section however excludes defamation; thus in an action for
defamation, the death of one of the parties extinguishes the claim.
5. Waiver
• The concept of waiver is when a person has more that one remedy available
to him, as a result, he has to elect one of them.
• Where a man has more than one remedy for a tort and he elects to pursue
one of them, giving up others, the other remedies are waived. He cannot
pursue them if he fails in the one elected.
Cont’d
• If A files a case against B claiming that B has committed a tort against him,
If he has a right to get more than one remedy he has to choose any one of
them, i.e. if he has the remedy in both tort and contract law, he has to
choose one between the two and cannot later on sue B under a different
remedy.
• Similarly, if a man is wrongfully deprived of his goods, which are
afterwards sold, he may bring an action for the tort, or he may sue for the
price received by the defendants.
Remedies
• Remedies in Tort Law are of 2 types;
1. Judicial Remedies: These are the remedies that the courts of law provide to
an aggrieved party.
2. Extra-Judicial Remedies: If the injured party takes the law in their own hand
(albeit lawfully), the remedies are called extra-judicial remedies.
Judicial Remedies
• Injunction: Injunction is an equitable remedy available in torts, granted at the
discretion of the court.
• The court can either ask the defendant to perform a specific act (mandatory
injunction)or to refrain from engaging in a particular act (prohibitory
injunction).
• During the course of a legal dispute, it may be necessary for a party to seek a
temporary remedy in the form of an interim injunction; they can be essential
in circumstances where a party wishes to preserve the status quo – often
ensuring that money remains in a bank account until the dispute has been
resolved;
• An interim injunction is often sought where the other party, if unrestrained,
might cause irreparable or immeasurable damage by continuing the conduct
which has led to the dispute.
• Interim injunctions may become permanent if the claimant is successful at
trial.
Damages cont’d
• Specific Restitution of Property: Restitution means the restoration of goods to
the owner of the goods.
• When a person is wrongfully dispossessed of his property or goods, he is
entitled to the restoration of his property.
• Damages: Damages or legal damages is the amount of money paid to the
aggrieved party to bring them back to the position in which they were before the
tort had occurred;
• They are paid to a plaintiff to help them recover the loss they have suffered.
• Damages are the primary remedy in a cause of action for torts; the court may
award different types of damages:
Cont’d
a) Compensatory damages:
• The law of torts seeks to fully compensate the victim. The underlying principle
is expressed by the term restitutio in integrum. This is explained by Lord
Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App. Cas 25 at 39:
“ the sum of money which will put the party who has been injured, or has
suffered, in the same position as he would have been in if he had not
sustained the wrong for which he is now getting his compensation or
reparation”
• Obviously this is not always possible; for example in a claim for personal
injury, the court cannot return the claimant to his pre-tort position. The court
thus grants a financial sum, which as far as possible, will compensate the
claimant.
Damages cont’d
• Compensatory damages are often divided in personal injury claims into special
and general damages:
• General damages are damages which cannot be precisely quantified i.e. loss
of future earnings or pain and suffering;
• Special damages are claimed for particular forms of pre-trial loss resulting
from the tort, which the claimant can quantify i.e. medical expenses and loss
of earning prior to trial.
b) Contemptuous
• A monetary remedy in the smallest denomination to indicate that a tort has
been technically committed but, in the opinion of the judge, the action should
not have been brought because the plaintiff has suffered no real loss.
• It is usually applicable only in defamation actions.
Damages cont’d
c) Nominal
• A small monetary remedy designed to indicate that, although the plaintiff has
suffered no harm, a tort has been committed and the rights of the plaintiff
have been infringed;
• generally applicable in torts that are actionable per se.
d) Aggravated
• A monetary remedy designed to compensate for the additional humiliation,
distress, or embarrassment resulting from the tortfeasor’s vicious, malicious,
or shocking conduct. Injuries that affect a person’s self esteem.
• The manner in which the tort is committed or the motive of the defendant
may justify an award for aggravated damages. Intentional torts such as libel
and trespass.
Damages cont’d
e) Exemplary/punitive
• The courts may grant punitive damages to a plaintiff to punish and make an
example of the defendant.
• Punitive damages are generally meted out in only the most extreme
circumstances, usually in breaches of obligation with significant evidence of
oppression, fraud, gross negligence, or malice.
• In such cases, the plaintiff may thus recover punitive damages in addition to
the actual damages for the sake of example and by way of further sanctioning
the defendant.
• Punitive damages are concerned with the conduct of D as opposed to the
damage suffered by the claimant.
Damages cont’d
The leading case here is Rookes v. Barnard [1964] A.C. 1129;-
• The effect of this has been to restrict the cases where exemplary damages may
be given to:
1. cases of offensive, arbitrary or unconstitutional action by the servants of
the government (the latter not being necessarily restricted to government
(the latter not being necessarily restricted to government servants in the
strictest sense);
2. cases in which defendant's conduct has been calculated by him to make a
profit for himself which may well exceed the compensation payable to the
plaintiff; and
3. When expressly authorized by statute.
Damages cont’d
• Further Reading:
• Kapwepwe v Zambia Publishing co Ltd [1978] Z.R. 15
• Cobbett-tribe v The Zambia Publishing Company Limited (1973) Z.R. 9 (H.C.)
• Chimba v ATtorney-general (1972) Z.R. 165 (H.C.)
• E. W. Rogers(2010), Winfield and Jolowicz on Tort, 18th Ed. London: Sweet
and Maxwell Limited – Chapter 22
Actions for Personal Injury
• In actions for personal injury, the claimant can sue for pecuniary and non
pecuniary loss.
1) Pecuniary loss is financial loss (quantifiable compensatory damages).
• The following can be claimed under pecuniary loss:
➢Loss of earnings: Loss of earnings in a personal injury lawsuit refers to the
loss of monetary income due to the injuries inflicted by the defendant. This
may include:
• Wages from work
• Commissions from sales
• Bonuses and other benefits
➢loss of expectation of life: this is a claim of loss of earnings during the period
the claimant would have been able to work, but for the fact that his or her life
has been shortened by D’s tort.
Cont’d
• See:
• Konkola Copper Mines Plc, Zambia State Insurance Corporation Ltd v John
Mubanga Kapaya (of the late Geoffrey Chibale) and 8 other Administrators (2004)
Z.R. 233 (S.C.).
• Elijah Bob Litana v Bernard Chimba and The Attorney-general (1987) Z.R. 26 (S.C.)
➢Loss of earning capacity: this is a claim for losses due to the fact that, although the
claimant can carry on working, his or her ability to obtain employment is hindered by the
continuing effects of the accident.
• For example a claimant disabled due to the accident may find it difficult to get
employment.
• See:
• Bank Of Zambia v Caroline Anderson and Andrew W. Anderson (1993 - 1994) Z.R.
47 (S.C.)
• Mary Patricia Soko v The Attorney-General S.C.Z. Judgment No. 12 of 1989
Cont’d
➢Expenses: the claimant can also recover reasonably incurred expenses which will
include; medical expenses, increased living expenses and the cost of transport to
and from the hospital.
• These will include past and future expenses incurred due to the injury.
2) Non pecuniary loss (compensatory damages that can't be clearly quantified in
monetary) –
➢Pain and suffering – the court will award a sum which represents the pain
and suffering experienced by the claimant.
➢Loss of amenity – this is a claim for loss of enjoyment of life experienced after
the injury
• See –
• Mary Musambo Kunda v Attorney - General (1993-1994) Z.R.1 (S.C.)
• Zambia State Insurance Corporation & ZCCM v Andrew Muchili (1988-89)
Z.R. 149
• Mukula and Highway Transport Limited v Chiwala and Another [2014] ZMSC
53 (4 June 2014);