OBJECTIVE
principles covered pertaining to the Law of Torts;
· Nature
of tortious liability.
· General
defenses in the law of tort.
· Negligence.
· Nuisance.
· Tresspass.
· Vicarious
liability.
· Occupiers’
liability.
· Defamation.
· Limitation
of action.
INTRODUCTION
This chapter introduces the reverse of criminal wrongs
which are civil wrongs. A tort is a dispute between two persons as opposed to a
person and the state. This chapter thus defines what actions constitute torts
and what remedies are available.
KEY DEFINITIONS
- Tort: - It
is a civil wrong other than breach of contract which
gives rise to an action at Common Law for unliquidated damages or other
relief
- Negligence: -
omission to do something which a reasonable man guided upon those
regulations which ordinarily regulate the conduct of human affairs would
do or doing something which a reasonable and prudent man would not have
done.
- Occupier: - a
person who has a sufficient degree of control over premises to put him
under a duty of care towards those lawfully upon his premises.
- Bailor:-A person
who owns goods and takes them for bailment
- Bailee:-A person
who takes possession of goods on bailment
- Bailment: It is
a transaction under which goods are delivered by one party (the bailer) to
another (the bailee) on terms, which normally require the bailee to hold
the goods and ultimately to redeliver them to the bailor or in accordance
with his directions.
- Tortfeasor:-A person
who commits a tort.
THE LAW OF TORTS
What is a tort?
A tort is a civil wrong other than a
breach of contract whose remedy is a common law action for damages or
other relief. However, not every wrong is a tort.A single action may give rise
to a tort and a crime.
The law of tort protects various personal and
proprietary interests.
Tortious liability arises from the breach of a
duty primarily fixed by law; this duty is towards persons generally and its
breach is redressable by an action for unliquidated damages.
Tort and Contract distinguished.
Tort
Contract
- The duty is fixed by
law
The duty is fixed by the parties
- The duty is owed to persons
generally
The duty is owed to the parties to the contract
- The remedies are few
(restricted)
The remedies are far much wider.
Tort and Crime distinguished.
Tort
It is a wrong redressable by an action for
unliquidated damages.
The party suing is an individual or private person.
Crime
It is a wrong the action of which involves punishment.
Almost always the party suing is the state.
THE PARTIES TO A SUIT (CAPACITY / LEGAL
LIABILITY IN TORTS)
· Government
At common law no action in tort lay against the state
(crown) for wrongs expressly authorized by the crown or for wrongs committed by
its servants in the course of their employment.
However, under the Government Proceedings Act[1],
the Government is liable for tortious acts. Section 4(2) provides;
“Subject to the provisions of this Act, the government shall be subject to all
those liabilities in tort to which if it were a full person of full age and
capacity it would be subject;
i. In
respect of torts committed by its servants or agents.
ii. In
respect of any breach of those duties which a person owes to his servants or
agents at common law by reason of being their employer.
iii. In
respect of any breach of duties attaching at common law to the ownership
occupation, possession or control of property.
However, Section 13A provides that before one can sue
the government he must give a 30 days notice.
Dorset Yatch Co Ltd v Home Office
Facts: An
action was brought by owner of property against the home office in respect of
damage to his property done by runaway borstal boys. Seven borstal boys ran
away one night when the three officers in charge of them were, contrary to
instructions, all in bed. They boarded one of the many vessels in the harbor,
started it and collided with the plaintiff’s yacht, which they then boarded and
damaged further. The defendant (Home Office) was held liable for not protecting
the plaintiff from the ravages of the borstal boys.
· Foreign
Governments / Sovereigns
Diplomats and foreign sovereign states enjoy absolute
immunity to criminal and civil liability before a Kenyan court unless the
immunity had been waived by submission to Kenyan Jurisdiction (under the Vienna Convention
on Diplomatic Relations, 1961).
This applies only where the act was done in the
exercise of the sovereignty of the state. Immunity ceases when one engages in
private and commercial venture. Immunity can be waived leading to a person
being charged.
· Bankrupts
May sue or be sued for torts committed.
· Minors
After an early period of uncertainty the common law
adopted 21 years as the age of majority for most purposes and it remained at
this until 1970 when it was reduced by statute to 18 years.[2]
A minor can sue and be sued for tort. A minor can
however not sue or be sued in his own name but by his “next friend”
(guardian ad litem[3]).
In the law of tort there is generally no defense of
minority and a minor is as much liable to be sued for his tort as is an
adult. In Gorely v Codd (1967), the defendant, a 16 ½
year old boy was held liable when he accidentally shot the plaintiff with an
air rifle in the course of lurking about.
Minority however may be a defense in an action for the
tort of negligence or malice. This is to be inferred from the fact that a young
child may well be incapable of the necessary mental state for liability in such
torts.
In an action for negligence against a young child,
therefore, it is insufficient to show that he behaved in a way which would
amount to negligence on the part of the adult. It must be shown that his
behavior was unreasonable for the child of his age.
Parents are not liable for the torts of their
children, but in situations where it is established that the child was under
control of the parent the commission of the tort by the child will result to
liability of the parent.
· Persons
Of Unsound Mind
Liability depends on whether the person knew what he
was doing when he committed the tort. This can be proven by a psychiatrist.
In Morris v. Mardsen (1952), the
defendant rented a room at a hotel. While there he attacked the manager of the
hotel. At that time he was suffering from a disease of the mind. It was
established that he knew the nature and quality of his act, but he did not know
that it was wrong.
It was held that as the defendant knew that nature and
quality of his act, he was liable in tort for assault and battery. It was
immaterial that he did not know what he was doing was wrong.
Unsoundness of mind is thus certainly not itself a ground
of immunity from liability in tort, and it is submitted that the true question
in each case is whether the defendant was possessed of the requisite state of
mind for liability in the particular tort in which he is charged.
· Husbands
And Wives
Married women can sue and be sued for torts committed
according to the 1935 Law Reform (Married women and tort feasors ) Act.
The Law now recognizes women as Femme
Sole (having legal capacity to sue and be sued). Under common law the
wife was never liable for her torts but her husband was liable for both his
torts and those of his wife.
· Corporations
A corporation can sue and be sued in its own name for
torts committed, but there are some torts which, by their nature, it is
impossible to commit against a corporation, such as assault or false
imprisonment.
A corporation can sue for the malicious presentation
of a winding –up petition or defamation, though the precise limits of the
latter are unclear.
Liability of Corporations is however limited. Thus if
a servant commits a tort that is ultra vires the
corporation then the corporation is not liable.
· Unincorporated
Associations
Cannot sue or be sued for torts committed but they can
institute a representative suit. The members of the association are
not liable for the torts of the association but the individual members are
liable for their own torts.
· Partners
They are personally liable for their own torts. They
can sue and be sued by writing down all the names of the partners and of that
partnership.
Each and every partner is liable for a tort committed
in the course of the business. It was so held in Hamlyn
v. Houston (1903).
· Aliens
A friendly alien has no disability and has no
immunity. An alien enemy is one whose state or sovereign is in war with the
sovereign of the state in question. As thus defined an alien enemy unless he is
within the realm of license of the sovereign cannot sue in the sovereign’s
courts.
He can however be sued and can defend an action and if
the decision goes against him, he can appeal.
GENERAL DEFENCES IN TORT LAW
1. PLAINTIFF’S DEFAULT/CONTRIBUTORY
NEGLIGENCE
This defence may be relied upon if the plaintiff is
also to blame for his suffering. The defendant must prove that:
i. The
plaintiff exposed himself to the danger/risk by act or omission
ii. The
plaintiff was at fault or negligent
iii. The
plaintiff’s negligence or fault contributed to his suffering
This defence doesn’t absolve the defendant from
liability. It merely reduces the amount of damages payable by the defendant to
the extent of the plaintiff’s contribution.
This defence is unavailable if the plaintiff is a
child of tender years.
If the plaintiffs were to sue and the defendant proved
that the plaintiff was on the wrong, that can constitute a defense. Under
Common Law, if a person contributed to a tort, that prevented him from suing.
It was a complete defence.
The law was however changed by statute under the
Common Law Reform Act of 1945. A plaintiff on the wrong can recover as long as
he has not contributed to 100% to the tort. Thus if he has contributed 40% he
can recover 60%.
2. ACTS OF GOD
Where damage is caused directly by natural
circumstances which no human foresight can provide against and of which human
prudence is not bound to recognize the possibility, the defense of act of God
applies.
For this defense to succeed it must be shown that the
act was not foreseeable and that it was unusual.
3. VOLENTI NON FIT INJURIA
This defense is available in circumstances where the
plaintiff with full knowledge of the risk voluntarily agrees to undertake the
same .The defendant must prove
a) That
the plaintiff had actual knowledge of nature and extent of the risk.
b) That
the plaintiff agreed to incur the risk voluntarily as was the case in Tugwell
V Burnett.
4. NECCESSITY
It may be relied upon if the tort complained of was
necessary to protect the society. It is usually relied upon by the state for
acts taken to protect the society at large as the interest of the public
prevail. (solus populi suprema lex)
The critical thing is that the act done has to be
reasonable. Necessity is limited to cases involving an urgent situation or
imminent peril. The measures taken must be reasonable and this will depend on
whether there is human life or merely property in danger.
5. STATUTORY AUTHORITY
This defense may be relied upon by the defendant
(usually the State or its agents) if the nuisance is authorized by statute. The
defendant has a complete defense only if he can prove that he acted in
accordance with the provisions of the Act. Whether the defence succeeds or not
depends on the interpretation of the Statute
SPECIFIC TORTS
1.NEGLIGENCE
In the words of Anderson B in Blyth v
Burmingham Water Works Co. negligence is the omission to do something which
a reasonable man guided upon those regulations which ordinarily regulate the
conduct of human affairs would do or do something which a reasonable and
prudent man would not have done.
ELEMENTS OF NEGLIGENCE
The tort of negligence consists of three elements
which a plaintiff must prove in any action based on negligence.
1. Legal
duty of care.
2. Breach
of duty.
3. Loss
or damage.
LEGAL DUTY OF CARE
The plaintiff must prove that the defendant owed him a
duty of care in the circumstances. The circumstance must have been such that
the defendant knew or ought to have known that acting negligently would injure
the plaintiff.
Who owes another a legal duty of care?
As a general rule every person owes his neighbor a
legal duty of care.
In the words of Lord Atkin in Donoghue v
Stevenson (1932), a person owes a duty of care to his neighbours. This
is the so called neighbor principal. You must take reasonable care to avoid
acts or omissions which you can reasonably foresee would be likely to injure
your neighbour. Who then in law is my neighbour?
The answer seems to be persons who are so closely and
directly affected by my acts that I ought to reasonably have them in contention
as being so affected when am directing my mind to the acts or omissions which
are called into question.
Whether a person owes another a duty of care will
depend on whether such a person could reasonably have foreseen injuring the
other.
STANDARD OF CARE
As a general rule the standard of care expected of the
defendant is that of a reasonable man of reasonable prudence. This is a person
who has the minimum information and knowledge necessary to act reasonably in
any situation.
Where professionals and experts are involved the
standard of care is that of a reasonably competent professional.
The concept of reasonable man is an artificial concept
developed by law to promote objectivity. It is independent of personal
subjectivity and prejudices.
Unforeseen plaintiffs
These are circumstances in which a defendant does not
owe a plaintiff a duty of care. In such circumstance the plaintiff cannot
sustain an action against the defendant irrespective of negligence.
In Kings v. Phillips where an
expectant mother suffered nervous shock by reason of hearing the son’s scream
while 70 yard s away, it was held that she could not recover since the
defendant driver owed her no legal duty of care.
In Bourhill v. Young an
expectant mother suffered a nervous shock on hearing a loud band and seeing a
pool of blood as a result of an accident caused by a negligently ridden motor
cycle. It was that she could not recover since the motorcyclist could not have
reasonably foreseen her suffering.
BREACH OF DUTY
The plaintiff must prove that the defendant acted
negligently thereby breaching his legal duty of care. The plaintiff must prove
specific acts or omissions the part of the defendant. The plaintiff must adduce
evidence to prove his case.
However in certain circumstances negligence is proved
without evidence. These cases are referred to as Res ipsa
loquitor which literally means “it speaks for itself”.
This is a rule of evidence by which the plaintiff is
deemed to have established negligence on the part of the defendant without
adducing any evidence.
REQUIREMENTS OF RES IPSA
- Absence of explanation; the plaintiff has no
evidence on the negligent acts or omissions of the defendant.
- Such a thing does not ordinarily occur when proper
care is taken
- The instrument or object which causes the harm
was exclusively within the control of the defendant or his servants or his
agents.
In Scott v London and St Catherine’s
dock the plaintiff a custom’s officer was injured by sugar bags
falling on him inside the defendant’s warehouse. It was held that the principle
of Res ipsa applied and he did not have to prove negligence on
the part of the defendant.
Effects of Res Ipsa
- It provides prima facie evidence
on the part of the defendant
- It shifts the burden of proof from the plaintiff
to the defendant and if the defendant’s explanation is credible the
plaintiff loses the case
LOSS OR DAMAGE
The plaintiff must prove that as a result of the
defendant’s breach of duty he suffered loss or damage.
The plaintiff’s loss must be traceable to the
defendant’s breach of legal duty, failing which the plaintiff’s damage is
deemed to be remote and therefore irrevocable.
The defendant is reasonably liable for any loss which
is reasonably foreseeable from his acts or omissions. It was so held in The Wagon
Mound II.
Question has arisen as to what losses the defendant
must have foreseen and courts have taken the view that as long as some loss is
foreseeable the defendant is liable for any loss.
In Bradford v. Robinsons Rental Co. Ltd, where
the plaintiff was exposed to extreme cold and fatigued, in the course of his
employment by his employers and as a consequence suffered from frost bite, it
was held that the defendants were liable, since his suffering from frost bite
was reasonably foreseeable.
However, the defendant is not liable if the loss or
damage suffered is not traceable to the negligent act or omission of the
defendant.
DEFENCES TO NEGLIGENCE
1. Contributory negligence
This defense is available in circumstances in which
the plaintiff is also to blame for the loss or injury. The defendant must
adduce evidence to establish the plaintiff’s contribution.
The defendant must prove:-
- That the plaintiff exposed himself to danger.
- That the plaintiff was at fault or negligent.
- That the plaintiff’s fault or negligence
contributed to his suffering.
Effect of contribution
It reduces the amount of damages recoverable by the
plaintiff by the extent of his contribution. However, children of tender years
are not guilty of contribution.
2. Voluntary assumption of risk (volenti
non fit injuria)
This defense is available in circumstances where the
plaintiff with full knowledge of the risk voluntarily agrees to undertake the
same.The defendant must prove
- That the plaintiff had actual knowledge of nature
and extent of the risk
- That the plaintiff agreed to incur the risk
voluntarily
In Dann v Hamilton the plaintiff had
taken a ride on a vehicle driven by a drunken person and his was aware of this
fact and as a consequence an accident occurred. The defendant’s plea of volenti failed
since the plaintiff had not consented to incur the risk.
However in Tugwell v Bunnet where
the defendant’s vehicle expressly stated that passengers rode at their own risk
and the driver at the material time was drunk to the plaintiff’s knowledge but
took a ride in the motor vehicle and was injured, the defendant’s defense
of volenti succeeded since the plaintiff appreciated the risk
and agreed to incur the same.
3. Statutory authority
If the conduct complained of by the plaintiff is
authorized by statute and the defendant has acted in accordance with the
provision of the statute the defendant has a complete defense to the
plaintiff’s action.
However whether or not the defense is complete depends
on the interpretation of the statute.
STRICT LIABILITY: THE RULE IN RYLANDS
v. FLETCHER
Anyone who in the course of non – natural use of his
land, accumulates thereon for his own purposes anything likely to do mischief
if it escapes is answerable for all direct damage thereby caused.
This is the rule in Rylands v. Fletcher where
the defendant employed independent contractors to construct a water reservoir
on the land, which was separated from the plaintiffs land by adjoining land. In
the course the works the contractors came upon some old shafts and passages
filled with earth. The contractors did not block them up. Unknown to them, the
shafts connected their land with the plaintiff’s mines. When the water filled
the reservoir, it seeped through the old shafts and into the plaintiff’s mines
thence flooding them. It was found as a fact that the defendant was not
negligent, although the contractors had been. However, although the defendant
was neither negligent nor vicariously liable in the tort of his independent
contractors, he was held liable by the Court of Exchequer chamber and the House
of Lords. The judgment of the Court of Exchequer chamber was delivered
by Blackburn J. at P. 279 -280 and it has become a classical exposition of
doctrine.
“We think that the true rule of law is, that the
person who for his own purpose brings on his land and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril,
and, if he does not do so, is prima facie answerable for all
the damage which is the natural consequences of its escape.”
This may be regarded as the ‘rule in Rylands
v. Fletcher’
But what follows is equally important. The court
further said:
“He can excuse himself by showing that the escape was
owing to the plaintiff’s default; or the act of God: it is unnecessary to
inquire what excuse would be sufficient”.
The general rule, as above stated, seems to be just in
principle.
“The person whose grass or corn is eaten down by the
escaping cattle of his neighbor, or whose mine is flooded by the water from the
neighbor’s reservoir, whose cellar is invaded by filth of his neighbors or
whose habitation is made unhealthy by the fumes and noise and vapours of his
neighbors alkali works, is damnified without any fault of his own; and it seems
reasonable and just that the neighbor, who has brought something on his own
property which was naturally there harmless to others so long as it is
confirmed to his own property, but which he knows to be mischievous if it gets
on his neighbors should be obliged to make good the damage which ensues if he
does not succeed in confining it to his property. But for his act in bringing
it there no mischief could have accrued, and it seems but just that he should
at his peril keep it there so that no mischief may accrue, or answer for the
natural and anticipated consequences and upon authority, this we think is
established to be the law whether the things so brought be beasts, or water, or
filth, or stenches.”
Lord Cairns in the House of Lords upheld this judgment
but restricted the scope of the rule to where the defendant made a “non-natural
use” of the Land.
This decision makes it clear that liability was strict
in the sense that the defendant’s liability was neither personal nor based on a
mere vicarious liability for the negligence of his independent contractors.
REQUIREMENTS OF THE RULE IN RYLANDS v.
FLETCHER
1. THE THING
The rule does not require that the thing should both
likely to escape and likely to do mischief on escaping. If this were the case,
there would be little difference between the rule in Rylands v.
Fletcher and negligence. Furthermore, in Rylands v. Fletcher, the
thing need not be dangerous in itself. The most harmless objects may cause
damage on escape from a person land.
The rule has been applied to a large number of objects
including water, gas, electricity, explosives, oil, vibrations, poisonous
leaves of trees, a flag post, a revolving chair at a fair ground, acid smuts
from a factory, a car, fire and even at one time gypsies.
In Musgrove v. Pandelis, the
court applied Blackburn J’s test literally where the collected thing did not
itself escape but caused the escape of something else. In this case, the
defendant was held liable under Rylands v. Fletcher for the
escape of a fire which started in the engine of his car was found to be an
object likely to do mischief if it escaped.
The artificiality of this approach was however
rejected in Mason v. Levy Auto parts in relation to a fire
which began in wooden packing cases stored in the defendants land. The test
applied was whether the objects were likely to catch fire and the fire spread
outside the defendant’s premises. The liability was a strict one if this
occurred.
In A.G. v. Corke a landowner was held
liable under Rylands v. Fletcher for permitting the camping on
his land of gypsies (caravan-dwellers) who trespassed and committed damage on
the neighboring land. This case was however received general disapproval in
applying the rule in Rylands v. Fletcher to human beings. The
objection has been that ‘things’ does not include human beings and that
liability in the above case should have been based on nuisance or negligence.
2. ACCUMULATION
The thing must be brought into the land for the
defendant’s purposes. The defendant need not own the land into which the thing
is brought.
A temporary occupier of land such as a lessee or a
person physically present on the land but not in legal occupation of it such as
a licensee is equally within the scope of the rule and is liable for damage
caused upon escape or a thing he has brought onto the land.
In Charing Cross Electricity
Supply Co-v- Hydraulic Power Company, the rule applied to one who had
the statutory power to lay electricity cables under the highway.
In Rigby v. Chief Constable of North
Amptonshire, the court stated that the rule applied to cases were the
defendant was in no sense in occupation of the land; in this case by firing a
canister of gas into the plaintiffs.
The requirement that the thing should be on the land
for the purpose of the defendant does not mean that it must benefit the
defendant.
In Smeaton v. Ilford Corporation it
was stated that a local authority which was under a statutory duty to collect
sewage collected it for its own purposes within the rule in Rylands v.
Fletcher.
Where the thing is naturally present on the defendant
cannot be liable for its escape under Rylands-v-Fletcher. The
escape of weeds, rocks and floodwater is thus outside the scope of the rule but
recent decisions have established possibility of can action in nuisance for
such escape.
The accumulation must thus be voluntary.
3. NON-NATURAL USER OF LAND
This is the most flexible and elusive ingredient of
liability. Blackburn J. understood ‘natural’ to mean things naturally on the
land and not artificially created. However uncertainty crept as a result of
Lord Cairns qualification that must be ‘a non-natural user’ of the land.
Through a series of cases, courts have come to look
upon ‘natural’ as signifying something which is ordinary and usual even though
it might be artificially instead of non-artificial. Non-natural use of land was
explained by the Privy Council in Richard v. Lothian as
per Lord Moulton.
‘It must be some special use bringing with it
increased danger to others and must not merely be the ordinary use of the land
or such a use as is proper for the general benefit of the community.’
What is natural is now viewed differently in different
cases.
Non-natural use of land is generally constituted by
certain activities as the storage on the land in bulk of water, electricity,
gas and the collection of sewage by local authorities.
It is however, arguable that many of the above
examples should be held to be natural use according to the Privy Council’s
definitions as being for the general benefit of the community. In British
Celenese Ltd v. A.H. Hunt Ltd, it was held that the benefit derived by
the community from the manufacturing of electrical and electronic components
made the use of land for such purpose and the storing of strips of metal foil
thereon a natural use of the land.
It is thus to be noted that the scope of ‘non-natural
user’ of land has narrowed over the years.
The decision will now depend on the facts of each
case. It has been held that generating steam or electricity is not
‘non-natural’ but that storing of industrial water under pressure, or gas and
electricity in bulk is a non-natural use.
4. ESCAPE
There is no liability under the rule unless there is
an escape of the substance from the land where it is kept. In Read-v-Lynns
& co Ltd. the defendants operated on ammunition factory as agents
of the Ministry of Supply. The plaintiff was an appointed inspector for the
ministry. In course of carrying out her duties in the factory, an explosion
occurred causing her injuries. She based her claim against the defendants
on Rylands-v-Fletcher making no assertion that the defendants
had been negligent. It was held that Rylands-v- Fletcher was
inapplicable because there had been no escape of the thing that inflicted the
injury. The House of Lords defined escape as:
“Escape from a place where the defendant had
occupation and control over land to a place which is outside his occupation or
control.”
It was stated further in this case that Rylands-v-Fletcher is
conditioned by 2 elements;
a) The
condition of escape from the land of something likely to do mischief if it
escaped.
b) The
condition of non-natural user of the land.
The House of Lords emphasized that the absence of an
escape was the basis of their decision in this case.
5. DAMAGE
Rylands –v-Fletcher is not actionable per se and
therefore there must be proof of actual damage. This appears to mean actual
damage to person or property and it excludes a mere interference with the
plaintiff’s enjoyment of this land, such as would be a ground in an action in
nuisance.
Damage recoverable under the rule is limited to damage
to person or property.
In Hale-v-Jennings Bros, the
court held that an occupier of land was entitled to damages for personal injury
under the Rule in Rylands-v-Fletcher.
In Cattle-v-Stocker Waterworks co,
it was held that purely economic loss was not recoverable.
DEFENCES TO THE RULE IN RYLANDS v.
FLETCHER
1. CONSENT OF THE PLAINTIFF
If the plaintiff has permitted the defendant to
accumulate the thing the escape of is complained of, then he cannot sue if it
escapes.
Implied consent will also be a defence; thus a person
becoming a tenant of business or domestic premises that the time when the
condition of the adjoining premises occupied by the landlord is such that the
happening of the Ryland v. Fletcher type is likely to ensue,
is deemed to have consented to take the risk of such an event occurring.
In Kiddle-v-City Business
Properties Ltd, the plaintiff became a tenant of the defendant in a house
below the house occupied by the defendant (Landlord). The gutter of the
Landlord’s house was blocked and when it rained, an overflow of rainwater from
the blocked gutter at the bottom of the sloping roof in possession of the
Landlord and above the tenant’s premises damaged the stock in the tenant’s
premises. It was held that the Landlord had a defence as the tenant impliedly
consented to the risk of rainwater overflowing into his premises.
If the accumulation benefits both the plaintiff and
the defendant, the plaintiff may be deemed to have consented to its
accumulation e.g. where for the benefit of several occupants’ rainwater is
accumulated on the roof or a water closet installed or water pipes fitted, the
several occupants are deemed to have consented.
On the other hand, the defence is not available as
between a commercial supplier of gas in respect of gas mains under the highway.
In any event an occupier will not be presumed to have consented to installations
being left in a dangerously unsafe state.
2. CONTRIBUTORY NEGLIGENCE (PLAINTIFF’S
OWN DEFAULT)
If the damage is caused solely by the act or default
of the plaintiff himself or where the plaintiff is contributorily negligent, he
has no remedy.
If for instance a person knows that there is danger of
his mine being flooded by his neighbors operations on adjacent lands and courts
the danger of doing some act which renders the flooding probable, he cannot
complain, as stated in Miles-v-Forest Rock Granite Co.Ltd.
In Dunn v. Birmingham Canal & Co,
where the plaintiff worked a mine under the canal of the defendant and had good
reason to know that they would thereby cause the water from the canal to escape
into this mine, it was held that they could not sue in Rylands v.
Fletcher when the water actually escape an damage their mine. Cockburn
C. J. said; “The plaintiff saw the danger, and may be said to have courted it.”
3. ACTS OF THIRD PARTIES (ACTS OF A
STRANGER)
Where the occupier of land accumulates things on his
land, the rule will not apply if the escape of the thing is caused by the
unforeseeable act of a stranger.
In Rickards v. Lothian the plaintiff
failed in his claim against the defendant where a third party had deliberately
blocked up the waste pipe of a lavatory basin in the defendant premises,
thereby, flooding the plaintiff’s premises.
The basis of the defense is the absence of any nature
of control by the defendant over the acts of a stranger on his land and thus
the burden is on him to show that the escape was due to the unforeseen act of a
stranger without any negligence on his own part.
If on the other hand, the act of the stranger could
reasonably have been anticipated or its consequences prevented, the defendant
will still be liable.
While it is clear that a trespasser is a ‘stranger’
for this purpose, other person included in this term depend on circumstances.
The occupier is of course liable for the defaults of
these servants in the course of an independent contractor useless it is entirely
collateral.
He is also liable for the folly of a lawful visitor as
well as misconduct of any member of his family on he has control over them.
It has also been argued that he ought to be
responsible for guests and licensees on his land but a distinction ought to be
taken here or it would be harsh to hold an occupier liable for the act of every
casual visitor who has bare permission to enter his land and of whose
propensities to evil he may know nothing of e.g. an afternoon caller who leaves
the garden gate open or a tramp who asks for a can of water and leaves the tap
on.
Possibly the test is, “can it be inferred from the
facts of the particular case that the occupier and such control over the
licensee or over circumstances which made his act possible that he ought to
have prevented it? If so, the occupier is liable, otherwise not.”
As regards the issue of dangerous elements brought on
the owners land by another person, the owner is not liable under the rule as
in Whitemorses v. Standford
4. ACT OF GOD
Where escape is caused directly by natural causes
without human intervention in “circumstances which not human foresight can
provide against and of which human prudence is not bound to recognize
possibility” the defense of act of God applies and the occupier is thus not
liable.
5. STATUTORY AUTHORITY.
Sometimes, public bodies storing water, gas,
electricity and the like are by statute exempted from liability so long as they
have taken reasonable care.
It is a question of statutory interpretation whether,
and, if so, to what extent liability under Ryland-v-Fletcher has
been excluded.
In Green v. Chelsea Waterworks Co. a
main pipe belonging to a waterworks company which was authorized by parliament
to lay the main, burst without any negligence on the part of the company and
the plaintiff premises were flooded; the company was held not liable.
On the other hand, In Charing Cross
Electricity Co v. Hydraulic Power Co. where the facts were similar,
the defendants were held liable. The defendant had no exemption upon the
interpretation of their statute.
The distinction between the cases of its that the
Hydraulic Power Company were empowered by statute to supply water for
industrial purposes, that is, they had permissive power but not a mandatory
authority, and they were under no obligation to keep their mains charged
with water at high pressure, or at all.
On the other hand, the Chelsea water works
Company were authorized by statute to lay mains and were under a statutory duty
to maintain a continuous supply of water it was an inevitable consequence and
damage would be caused by occasional bursts and so by necessary implication the
statute exempted them from liability where there was no “negligence’.
The question whether the rule in Rylands v.
Fletcher applies in all its strictness to local authorities has been
considered but not decided.
VICARIOUS LIABILITY
The expression “vicarious liability” signifies
liabilities which A may incur to C for damage caused to C by the negligence or
other tort of B.
It is not necessary that A should not have
participated in any way in the commission of the tort nor that a day owed in
Law by A to C shall have been broken.
What is required is that A should stand in particular
relationship to B and that B’s tort should be referable in a certain manner to
that relation.
The commonest instance in Law is the liability of a
master for the torts of his servants. Vicarious liability generally arises from
a contract service.
MASTER-SERVANT RELATIONSHIP.
Who is a servant?
Since vicarious liability generally arises from a
contract of service (“servant”) not a contract of services (“independent
contractor”) it is important to determine the indicia if a
contract of service.
In an often cited statement in Short v. J
& W Henderson Ltd Lord Thankkerton said that there are four
indications of a contract of service;
a) The
master’s power of selection of is servant
b) The
payment of wages or other remuneration
c) The
master’s right to control the method of doing the work, and
d) The
master’s right of suspension
This list has been found helpful in determining
whether a master-servant relationship exists but it is not conclusive. It
is not possible to compile an exhaustive list of all the relevant
considerations. The court stated in Market Investigation Ltd v.
Minister of Social Security (1969 ) per Cooke J:
The most that can be said is that control will no
doubt always have to be considered, although it can no longer be regarded as
the sole determining factor; and that factors which may of importance are
such matters as whether he hires his own equipment, whether he is own
helpers, what degree of financial risk he takes, what degree of
responsibility for investment and management he has, and
whether and how far he has an opportunity of profiting from
sound management in the performance of his task.
The control test is however not conclusively determinant
of master-servant relationship especially when dealing with professionals or
men of a particular skill.
In Morren v. Swinton the defendants
engaged a firm of consultant engineers to supervise the construction of certain
sewage works. Under the contract, the defendants were supposed to appoint
a resident engineer (to be approved by the consultants) to supervise the works
under the general supervision and control of the consultants.The plaintiff was
appointed as a resident engineer by the defendant and approved by the
consultants pursuant to the terms of the contract. He was paid by the
defendant and was entitled to holidays with pay and was liable to be dismissed
by the defendants. He was however delegated to the consultants and was
under their general supervision and control
Held: Absence of control by the defendant was not
necessarily the most important test. The other factors were
enough to show that the plaintiff was clearly employed by the defendant under a
contract of service.
It is thus important to state that whether or not a
contract of service exists will depend on the general nature of the contract
and no complete general test exists. More helpful is the well-known
statement of Denning L. J. in Stevens v. Brodribb Co. Pty.
Ltd.
“It is often easy to recognize a contract of service
when you see it, but difficult to say wherein the distinction lies.One feature
which seems to run through the instances is that, under a contract of service,
a man is employed as part of a business, and his work is done as an integral
part of the business; whereas under a contract of services, his work, although
done for the business, is not integrated into it but is only an accessory to
it.”
An independent contractor will commonly be paid “by
the job” whereas a servant will generally receive remuneration based upon time
worked. But a piece worker is still a servant; and a building contractor
is under a contract of service notwithstanding that it may contain provisions
for payment by time.
Once the Master-servant relationship is established,
the master will be liable or all torts committed by the servant in
the course of the employment.
a) Hospitals
It has held that radiographers, house surgeons, house
time-assistant medical officers and probably staff anesthetics are employees of
the hospital authority for various liabilities. But visiting
consultants and surgeons are not employees of the hospital and thus the
hospital is not liable.
In Hillyer v. St-Bartholomew’s Hospital the
plaintiff bought an action against the governor of a hospital for injuries
allegedly caused to him by negligence of an operating surgeon. The
hospital was a charitable body.
Held: That the action was not maintainable. The court
further stated that the only duty undertaken by the governors of public
hospital towards a patient who is treated in the hospital is to use due care
and skill in selecting their medical staff. The relationship of master
and servant does not exist between the governors and the physicians and
surgeons who give their service at the hospitals (i.e. who are not servant of
the hospital.) The court further stated that the nurses and other and other
attendants assisting at the operation cease, for the time being, to be the
servant o the governor, in as much as they take their orders during that period
from the operating surgeon alone and not from the hospital authorities.
Where there is a contract between the doctor and the
patient, the hospital is not liable.
A hospital is thus liable for negligence of doctor and
surgeons employed by the hospital authority under a contract of service arising
in the course of the performance of their professional duties. The
hospital owes a duty to give proper treatment to its patients.
In Cassidy v. Minister of Health the
plaintiff entered a hospital for an operation of this left hand, which
necessitated post-operational treatment. While undergoing
the treatment he was under the care of a surgeon who performed the
operation and who was a whole-time assistant medical officer of the hospital,
the house surgeon and members of the nursing staff, all of whom were employed
under a contract of service. At the end of the treatment it was found
that his hand had been rendered useless.
Held: The hospital was liable
A hospital may also be liable for breach of duty to
patients to provide proper medical service although it may have delegated the
performance of that duty to persons who are not its servants and its duty is
improper or inadequately performed by its delegate.
An example is where the hospital authority is
negligent in failing to secure adequate staffing as where a delegate is given a
task, which is beyond the competence of a doctor holding a post of seniority.
b) Hired Servants
A difficult case arises where A is the general
employer of B but C, by an agreement with A (whether contractual or otherwise)
is making temporary use of B’s services.
If B, in the course of his employment commits a tort
against X, is it A or C who s vicariously liable to X? It seems that it
must be one or the other but not both A&C.
In Mersoy Docks and Harbour Board v. Coggins
and Griffith (Liverpool) Ltd. A employed B as
the driver of a mobile crane. A let the crane to C together with B as
driver to C. The contract between A and C provided that B should be the
servant of C but was paid by A and A alone had the power to dismiss
him. In the course of loading a ship, X was injured by the negligent way
in which B worked the crane. At the time of the accident C had the
immediate direction and control of the operations to be executed by
B and crane e.g. to pick up and move a pieces of cargo, but he had
no power to direct how B should work the crane and manipulate its controls.
Held: That A as the general or permanent employer of B was
liable to X. The court that there is a very strong presumption that a
servant remains to be the servant employer although he may be the servant of
the hirer.
The question whether A or C is liable depends on how
many factors; e.g. Who is the paymaster, who can dismiss, how long does
the alternative service last, what machinery is employed etc.
The courts have however generally adhered to the view
that the most satisfactory test is, who at the particular time has authority to
tell B not only what he is to do, but how he is to do it. This is
question of fact involving all he circumstances of the case.
c) Loan of Chattels
In Omrod v. Crosville Motor Services Ltd.
(1953) the owner of a car was attending the Monte
Carlo motor rally. He asked a friend to drive his car from
Birkernhead to Monte Carlo where they were to have a holiday
together. During the journey, on a diverted route, the car was involved in an
accident.
Held: At the time of the accident, the car was being used
wholly or partially for the owner’s purposes and thus the friend was agent of
the owner and in so far as the friend was liable of negligence, the owner was
vicariously liable for his negligence.
LIABILITY IN RESPECT OF AN INDEPENDENT
CONTRACTOR
The employer is generally not liable for torts
committed by an independent contractor. The employer is however liable if
he is deemed to have committed the tort.
This may occur in the following instances;
1. Whether the employer has authorized the
commission of the tort.
In many circumstances, the law will attribute to a man
the conduct of another being, whether human or animal, if he has instigated
that conduct.
He who instigates or procures another to commit a tort
is deemed to have committed the tort himself.
In Ellis v. Sheffield gas Consumers
Co the defendant who had no authority to up the street employed a
contractor to open trenches and lay gas pipes along a street.
The contractor carelessly left a heap of stones on the
footpath; the plaintiff fell over them and was injured.
Held: the defendants were liable since the contract was to
do an illegal act, a public nuisance. The decision would have been
different had it been lawful for the defendant to dig up the streets.
2. Torts of Strict Liability
The employer is liable in those circumstances e.g.
in Rylands-v-Fletcher the employer was held
liable for the acts of his independent contractors as this was a case of strict
liability.
These in torts of strict liability, the employer will
be liable even where the tort e.g. the escape is caused by the negligence of an
independent contractor.
In Terry v. Aston, the
defendant employed an independent contractor to repair a lamp
attached to his house and overhanging the footway. As it was not security
fastened, the lamp fell on the plaintiff, a passer-by and the defendant was
held liable, because: it was the defendant’s duty to make the lamp
reasonably safe, the contractor had failed to do that. Therefore, the
defendant has not done his duty and is liable to the plaintiff for
the consequences.
Here liability was strict.
3.Negligence
When there is an element of personal negligence on the
part of the employer as to make him liable for the acts of an independent
contractor. E.g. Where the employer is negligent or careless in employing
an independent contractor for instance, where the contractor is incompetent.
Failure to provide precaution in a contract where
there is risk of harm unless precaution is taken can make the employer liable
for the tort of the contractor.
In Robinson v. Beaconsfield Rural Council, the
defendant employed an independent contractor, one hook, to clean out cesspools
in their district.
No arrangements were made for the disposal of the
deposits of sewage upon being taken from the cesspools by hook. Hook men
deposited the sewerage on the plaintiff land.
Held: The defendants had a duty to dispose the sewerage and,
on construction of the contract, they had not contract with hook for discharge
of this duty (disposing of the sewage) hence they were liable for the acts of
the hook’s men in disposing it on to the plaintiff land.
4. Where the Duty of Care Is Wide
An example is where the independent contractor is
dealing with hazardous circumstances, or works which from its very nature,
poses to other persons.
In Holiday v. National Telephone Co, the
defendant, a Telephone Company, was lawfully engaged in laying telephone wires
along a street. They passed the wires through tubes, which they laid a
trench under the level of the pavement.
The defendants contracted with a plumber to connect
these tubes at the joints with lead and solder to the satisfaction of the
defendant foreman.
In order to make the connections between the tubes, it
was necessary to obtain a flare from a benzoline lamb of applying heat to the
lamb. The lamb was provided with a safety valve.
The plumber dipped the lamp into a caldron of melted
solder, which was placed over a fire on his footway. The safety valve not
being in working order caused the lamb to explore. The plaintiff, who was
passing on the highway was splashed by the molten solder and injured.
Held: The defendant were liable because having authorized
the performance of work which from its nature was likely to involve danger to
persons using the highway were bound to take care that those who executed the
work for them did not negligently cause injury to such persons.
ESSENTIALS FOR THE LIABILITY OF THE MASTER
For a master to be liable for his servant’s torts the
tort must have been committed “in the course of employment”. An act is
done in the course of employment if;
a) It
was a wrongful act authorized by the master
b) It
was a wrongful and unauthorized mode of doing something authorized by the
master.
In London County Council v. Caltermoles
(Garages) Ltd, the defendant employed a general garage hank, part of
whose job involved moving vehicles around the garage. He was only
supposed to push the vehicles and not to drive them. On one occasion, he
drove a vehicle in order to make room for other vehicles. Whilst doing so, he
negligently damaged a vehicle belonging to the plaintiff.
Held: That the negligent act was within the course of the
garage hand’s employment although he had carried his duties in an unauthorized
manner. His master was thus vicariously liable.
In Muwonge v. Attorney-General of Uganda, the
appellant’s father was killed during a riot. The shot which killed him
was fired by a policeman who had seen the appellant’s father ran towards a
house and had concluded that the appellant’s father was a rioter.
Held: The firing of the shot was act done with the exercise
of the policeman’s duty in which the government of Uganda was liable
as a master even though the act was wanton, unlawful and unjustified.
If the act is not done within the course of
employment, the master is not liable. In Twine v. Beans Express a
van driver employed by the defendant had been expressly forbidden to give lifts
to unauthorized persons and a notice to this effect was displayed on the
dashboard. The van driver gave a lift to a person who was killed in a
subsequent accident due to the negligence of the van driver. The widows
of the deceased brought an action against defendant.
Held: The action by the widows failed because the driver was
acting outside the course of his employment.In this case the act was expressly
unauthorized.
GENERAL GUIDELINE IN DETERMINING WHETHER AN ACT WAS
COMMITTED DURING THE COURSE OF EMPLOYMENT
1. Look at the mode of doing the work the
servant is employed to do
In Century Insurance C v. Northern Ireland
Road Transport Board, one of the respondent’s employees was delivering
petrol to garage. While the petrol was flowing from the lorry to the
tank, he lit a cigarette and negligence threw away the lighted match which
caused an explosion damages the appellant’s property. The action of the
employee was treated as being within the course of employment. On appeal it was
held that the respondents were liable for the damage caused for such an action,
whilst for the comfort and convenience of the employee could not be treated as
isolated act as it was a negligent method of conducting his work.
In Bayley v. Manchester Sheffield and
Lincolnshire Railway the plaintiff was in a train traveling to
Macclesfield and he explained this to the mistakenly believed that the
plaintiff was the wrong train (that train was not traveling to Macclesfield)
and violently ejected the plaintiff who suffered injuries.
Held: The
defendants were liable because the porter was acting within the cause of
employment.
2. Whether the act was authorized within
the limits of time and space e.g. if one is employed to work between 8.00 a.m.
and 5.00 p.m., the master is only liable for torts committed within that time
frame.
Ruddiman & Company v. Smith, the plaintiff was using the lower room of the
defendant‘s house while the defendant used the upper room for carrying on
business. In the upper room there was a lavatory. The clerk, after
duty, went to the lavatory to wash his hands but on turning on the tap and
finding no water, went away without turning the tap off. When water
turned on the morning, it overflew into the lower room and damaged the
plaintiff goods.
Held: The employer was liable for whether or not the use of
the lavatory. Within the scope of the clerk’s employment, it was an event
incidental to his employment.
In Storey v. Aston, the defendant, a
wine merchant, sent his car man and clerk to deliver wine and pick up empty
bottles. On their way back, they diverted to visit the clerks house in
the course of which they negligently knocked down the plaintiff and injure him.
Held: The defendant was not liable for the injury caused by
the negligent driving of the car man for he was, that time, engaged in a new
and completely unauthorized journey.
3. Whether the act was the initiative of
the servant or the master had a certain control.
In Warren v. Henlys Ltd, erroneously
believing that the plaintiff had to drive away from the garage without paying
or surrendering coupons for petrol which had been put in the tank of his car, a
petrol pump attendant used violent language to him.
The plaintiff paid his bill and gave the necessary
coupons and after calling the police, told the attendant that he would report
him to his employers.
The pump attendant then assaulted and injured him. In
an action for personal injuries against his employers.
Held: That the defendants were not liable for the wrongful
act of their employee. Since the act was one of the personal vengeances
and was not done in the course of employment; it not is an act of a class which
the employee was authorized to do or a mode of doing an act within that class.
In Poland v. John Parr and Sons, Arthur
Hall, a carter was employed by John Parr. Parr and his son were conveying
a wagon with bags of sugar. Arthur, on his way home for dinner was
walking else to the wagon. The plaintiff, a schoolboy, was walking home
in the same direction with his hand upon one of the bags of sugar.
Honestly and reasonably thinking that the boy was
stealing, Arthur gave him a blow on the back of his neck as a result whereof he
fell and the wheel of the wagon injured his foot which was amputated.
Held: In the circumstances, the carter had implied authority
to make reasonable efforts to protect and preserve the defendants property;
that the violence exerted was not so excessive as to take his act outside the
scope of authority and that the defendant were liable.
4. Where there is an express prohibition.
An express prohibition does not negate liability i.e.
a master does not escape liability simply because he had an express
prohibition. For liability to be determined, two factors are considered:
- Whether the prohibition limits the sphere of
employment. If it does, the master is not
liable for an act done outside the sphere. (Sphere).
- Where the prohibition deals with the contract
within the sphere of employment. If it does, the employer will be
liable. (Mode)
In Canadian Pacific Railway Co v.
Lockhart a servant of the appellant Company in disregard of
written notices prohibition employers from using private cars for the purpose
of the company’s business unless adequately insured, used his uninsured, used
his uninsured motorcar as a means of execution of work which he was ordinarily
employed to do in the course of which he injured the respondent .
Held: The means of transport was incidental to the execution
of work, which the servant was employed to do and that the prohibitions of the
use of an uninsured motor car merely limited the mode of executing the work,
breach of the prohibition did not exclude the liability of the company to the
respondent.
In Rand v. Craig, Carters
were employed by a contractor to take rubbish from certain works to his dump
and were strictly forbidden not to hip it anywhere else. Some of the
carters, without knowledge of the contractors, and in contravention of their
orders took the rubbish to a piece of unfenced land belonging to the plaintiff
as it was nearer the works that the dump of contractor.
Held: The illegal acts complained of where not within the
sphere of the carter’s employment and consequently the contractor was not
liable for them.
5. Whether the act was a deliberate
criminal act
In Lloyd-v-Grace Smith & Co., the
plaintiff had sought advice from the defendants, a firm of solicitors, whose
managing clerk conducted conveyance work without supervision. He advised
the plaintiff to sell some property, fraudulently persuading her to sign
certain documents that transferred the property to him. He disposed of it
and kept the proceeds.
Held: Even though the fraud had not been committed for the
benefit of the employers, nevertheless they were liable, for the clerk had been
placed in position to carry over such work and had acted throughout in the course
of his employment.
OCCUPIERS LIABILITY
This is the liability of an occupier of premises for
damage a done to visitors to the premises.
OCCUPIER’S LIABILITY AT COMMON LAW
At common law the duties of an occupier were cast in a
descending scale to four different kinds of persons. For example:
a) The
highest duty of care was owed by the occupier to one who entered in pursuance
of a contract with him e.g. a guest in a hotel. In that case there was an
implied warranty that the premises were as safe as reasonable care and skill
could make them.
b) A
lower duty was owed to the invitee i.e. a person who without any contract
entered on business of interest both to himself and the occupier e.g. a
customer coming into a shop to view the wares he was entitled to expect that
the occupier should prevent damage from unusual danger of which knew or ought
to have know.
c) Lower
still was the duty of the licensee i.e. a person who entered with the occupiers
express or implied permission but without any community of interest with the
occupier; the occupiers duty towards him was to warn him of any concealed
danger or trap of which he actually knew.
d) Finally,
there was the trespasser to whom there was owed only a duty to abstain from
deliberate or reckless injury.
Occupiers liability deals with the liability of an
occupier of premises and extends to immovable property as open land house,
railway stations and bridges as well as movable structures like ships, gangways
or even vehicles although lawyers prefer to treat injury in the
latter as falling with common law negligence.
Under common law lawful visitors who did not fall
under the above classifications of contractual entrants, invitees or licensees
were not clearly covered and accidents arising from the premises and affecting
such person were commonly governed by the general law of negligence.
The position of the common law was thought to be
unsatisfactory. As lord Denning put it in Slatter v. Clay Cross
Co. Ltd
“If a landowner is driving his car down his private
drive and meets someone lawfully walking upon it then his is under a duty to
take reasonable care so as not to injure the walker; and his duty is the same
no matter whether it is his gardener coming up with his plants, a tradesman
delivering his goods, a friend coming to tea, or a flag seller seeking a
charitable gift”
The law was thus referred to the law reform committee
in 1952 as a result of whose report the Occupier’s Liability Act 1957 was
passed.
MODERN LAW ON OCCUPIER’S LIABILITY
The 1952 Act abolished the common law distinction
between invitees, licensees and the substitution for it was a single duty of
care owed by the occupier to his visitors. The Act treats
contractual entrants as a separate category but less significantly than at
common law.
The position of the trespasser remained the same under
the 1952 Occupier’s Liability Act but was subsequently changed by the Occupiers’
Liability Act 1984.
As before the occupier duties under the Act apply not
only to land and buildings but also to fixed and movable structures and they
govern his liability in respect of damage to property as well as injury to the
person.
OCCUPIER
The duty under the Act is imposed upon the
occupier. The word ‘occupier’ denotes a person who has a sufficient
degree of control over premises to put him under a duty of care toward those
who come lawfully upon the premises.
An owner in possession is no doubt an occupier, but an
owner who has demised the premises to another and parted with possession is
not.
An absentee owner may ‘occupy’ his premises through
his servant and thus remain subject to the duty and he may also be subject to
it though he was contracted to allow a third party to have the use of the
premises.
There may be more than one “occupier’ of the same
structure or part of the structure.
VISITORS
A visitor is generally a person to whom the occupier
has given express or implied permission to enter the premises.
The Act extends the concept of a visitor to include
persons who enter the premises for any purpose in the exercise of a right
conferred by law for they are to be treated as permitted by the occupier to be
there for that purpose, whether they in fact have his permission or not. This
would include a fireman attending a fire or a policeman executing a search
warrant.
Implied permission – this is a question to be decided
on the facts of each case and the burden of proving an implied
permission rests upon the person who claims that it
existed.
Any person who enters the occupier’s premises
for the purpose of communicating with him will be treated as having the
occupier’s tacit permission unless he knows or ought to have known that he has
been forbidden to enter e.g. by notice ‘no hawkers’
The occupier may of course withdraw this implied
license by refusing to speak or deal with the entrant but if he does so the
entrant has a reasonable time in which to leave the premises before he becomes
a trespasser.
The duty owed to a visitor does not extend to anyone
who is injured by going where he is expressly or impliedly warned
by the occupier not to go as where a tradesman’s boy deliberately chooses
to go into a pitch dark part of the premises not included in the invitation
and falls downstairs there (Lewis v Ronald).
Further the duty does not protect a visitor who goes
to a part of the premises where no one would reasonably expect him to go.
A person may equally exceed his license by staying on
premises after the occupier’ permission has expired but the limitation time
must be clearly brought to his attention. “The common duty of care
requires that the occupier must be prepared for children to be less careful
than adults but the special characteristics of children are relevant also to
the question of whether they enjoy the statutes of visitors.
In Glasgous Corporation v. Tayler it
was alleged that a child aged seven had died from eating poisonous berried
which he had picked from a shrub in some garden under the control of the
corporation.
The berries looked like cherries or large
blackcurrants and were of a very tempting appearance to children. It was
held that these facts discussed a good cause of action.
Certainly the child had no right to take the
berries or even to approach the bush and an adult doing the same thing might as
well have become a trespasser but since the object was an ‘allurement’
the fact of its being let there constituted a breach of the occupiers duty.
COMMON DUTY OF CARE
The common duty of care owed to all visitors as
well as an entrant on contract with implied terms is defined as a duty such
care as in all the circumstances of the case is reasonable to see that the
visitor will be reasonably safe in using the premises for the
purpose for permitted to be there.
The Act gives some guidance in applying the common
duty of care:
- An occupier must prepared for children to be less
careful than adults; and
- An occupier may expect that a person in the
exercise of his calling will appreciate and guard against any special
risks ordinarily incident to it, so far as the occupier leaves him free to
do so.
As to (i) it will be reasonable for the occupier to
expect children on his premises unaccompanied but the law is still as was
stated before the Act by Delvin J in Phipps v. Rochesther Corporation, namely
that some of the circumstances which be taken into account in measuring the
occupiers obligation is the degree of care for their children’s safety which
the occupier may assume will be exercised by the parents.
In this case; the plaintiff a boy aged five was with
his sister aged seven and they walked across a large opening, which formed part
of a housing estate being developed by the defendants. The defendants had dug a
long deep trench the middle of the open space a danger, which was quite obvious
to an adult. The plaintiff fell in and broke his leg.
Held:
A prudent parent would not have allowed two small children to go alone on the
open space in question or at least he would have satisfied himself that the
place held no danger for the children. The defendants were thus not
liable.
The judgment of Delvin J squarely placed the primary
responsibility for the safety of small children upon their parents, he started:
“It is their duty to see that such children are not
allowed to wander about by themselves or at least to satisfy themselves that
the places to which they do allow their children to go unaccompanied are safe
for them to go. It would not be socially desirable if parents were as a
matter of course able to shelf the burden of walking after their children from
their own shoulders to those who happen to have accessible bits of land.”
The occupier will have discharged his duty if the
place is reasonably safe for a child who is accompanied by the sort of guardian
whom the occupier is in all the circumstances entitled to expect him to have
with him.
As to (ii) above the general rule is that where an
occupier employs an independent contractor to do work, be it of cleaning or
repairing on his premises the contractor must satisfy himself as to the
safety or condition of that part of the premises on which he is to work
In Roles v. Nathan (1963) two chimney
sweeps were killed by carbon monoxide gas while attempting to seal up a sweep
hole in the chimney of a coke-fired boiler, the boiler being alight at the
time.
Held:
The occupier was not liable for their deaths. As per Lord Denning M. R.
“when a house holder calls a specialist to deal
defective installation on his promises he can reasonably expect the specialist
to appreciate and guard against the danger arising from the defect.”
SPECIFIC ASPECT AFFECTING OCCUPIER’S
LIABILITY
a) Warning
In most cases a warning of the danger will be
sufficient to enable the visitor to be reasonably safe and so amount to a
discharge by the occupier by duty of care but, if for some reason the warning
is not sufficient then the occupier remains liable.
b) Independent character
Where damage is caused to a visitor by a danger due to
the faulty execution of any work of construction, maintenance or repair by an
independent contractor employed by the occupier, the occupier is not liable if
in all the circumstances if he had acted reasonably in entrusting the work to
an independent contractor and had taken such steps as he reasonably ought to in
order to satisfy himself that the contractor was competent and that the work
had been properly done.
In Haseldine v Daw (1941) the
plaintiff was going to visit a tenant in a block of flats belonging to the
defendant and was injured when the lift fell to the bottom of its shaft as a
result of negligence of the firm of engineers employed by the defendant to
repair the lift.
Held: That
the defendant having employed a competent firm of engineers to make periodical
inspections of the lift to adjust it and to report on it had discharged the
duty owed to the plaintiff whether the plaintiff was an invitee or a licensee.
An occupier must take reasonable steps to satisfy
himself that the contractor he employs is competent and if the character of the
work permits, he must take similar steps to see that the work has been properly
done.
Where the technical nature of the work to be done will
require the occupier to employ an independent contractor, he will be negligent
if he attempts to do it himself.
Liability to trespass
An earlier stated the original common law rule that
the occupier was only liable to a trespasser in respect of some willful act
“done with deliberate harm or at least some act done with reckless disregard of
the presence of the trespasser” (Rober Addie & Sons Ltd v Dumbreck
(1929) remained unaffected by the occupiers liability act
1957.
The law underwent substantial alteration and
development by the House of Lords in British Railways Board v.
Herrrington
As a result of this case an occupier owed the
trespasser a duty of common humanity, which generally speaking was lower than
the common duty of care but substantially higher than the original
duty. Herrington’s case was applied by the courts of
appeal on a number of occasions without undue difficulty.
The duty owed to a trespasser was eventually clarified
by the Occupiers’ Liability Act, 1984. Section 1(3) of the act provided
that a duty is owed to the trespasser if;
a) The
occupier is aware of the danger or has reasonable grounds to believe that it
exists.
b) He
knows or has reasonable grounds to believe that the trespasser is in the
vicinity of the danger concerned or that he may come into the vicinity of the
danger and
c) The
risk is one against which in all the circumstances of the case he may
reasonably be expected to offer the trespasser some protection.
The duty is to take such care as is reasonable in all
the circumstances to see that the entrant does not suffer injury on the
premises by reason of the danger concerned and it may in appropriate
circumstances be discharged by taking such steps as are reasonable to give
warning of the danger concerned or to discourage persons from incurring the
risk.
The Kenyan law on occupier’s liability is governed
by The Occupiers Act[4],
Cap, which was enacted in 1963 and revised in 1980. The provisions
relate to the occupiers’ duty to visitors and entrants on contract.
The Act is silent as regards duty to trespassers and
does not incorporate the amendments brought about by the 1984 English Version of
the Act. It would thus appear that the Kenyan position as regards
liability to trespass is the common law position.
TRESPASS TO THE PERSON
This is interference with the body of a person. Every
person has a right to non-interference with his body. The law of torts evolved
3 torts to protect these right or interest namely; assault, battery and
false imprisonment
A) ASSAULT
This is an act of the defendant which causes the
plaintiff reasonable apprehension of the infliction of a battery on him by the
defendant. It is an act of the defendant which directly and either
intentionally or negligently causes the plaintiff immediately to apprehend a
contact with the body of the defendant .This tort protects a person from mental
anxiety.
Rules of the Tort
- There must be some apprehension of contact
- There must be a means of carrying out the threat
by the defendant
- The tort is actionable per se.
- The tort is generally associated with battery
- Mere words without body movement do not
constitute assault.
Assault is constituted by:-
- A display or show of force
- Pointing of a loaded gun
- Cursing in a threatening manner
B) BATTERY
This is the intentional and direct application of
force to another person. It has been defined as any act of the defendant which
directly and either intentionally or negligently causes some physical contact
with the person or body of the plaintiff without his consent.
As a general rule battery is based on an intentional
act and is both a crime and a tort.
Meaning of Force
Any physical contact with the body of the plaintiff or
with his clothing is sufficient to amount to force. There is battery where the
defendant shoots the plaintiff from a distance just as much as when he strikes
him with his fist. Mere passive obstruction is however not battery.
In the technical sense however, no physical hurt is
necessary, for all forms of trespass are actionable per se i.e.
without prove of damage.
Where there is express or implied consent to contact
the plaintiff can’t sue. Life would be difficult if all bodily contact was
actionable and courts have struggled to find some further ingredient to
distinguish battery from legally unobjectionable conduct.
In Collins v. Wilcock (1984) Goff L J
stated that apart from specific defenses such as lawful authority in effecting
an arrest or prevention of crime, bodily contact was not actionable if it was
generally acceptable in the ordinary conduct of daily life.
However, the court of appeal in Wilson v.
Prigle while not wholly rejecting this approach has laid down that
battery involves a 'hostile' touching by the defendant i.e. where he willfully
interferes with the plaintiff inn a way to which he is known to object.
Touching another person in the course of a conversation
in or to draw his attention to something is not battery but 'an unwanted kiss
is as much actionable as a blow’. (Per Lord Holt C J) in Cole Turner
1704
For battery there must be a voluntary act by the
defendant intended to bring about the contact with the plaintiff. The battery
need not be committed with the person of the person of the defendant.
It is battery to strike the plaintiff by throwing a
stone at him. Provided the force used has its effect on the person of the
plaintiff's person must be intended by the defendant e.g. it is battery to
remove a chair on which the plaintiff is about to sit as a result of which he
falls on the ground.
In Fagan v. Metropolitan Commissioner of
Police (1969), the defendant accidentally drove his car on the foot of
a police constable. He then delayed in reversing the car thus preventing the
constable from escaping and knowing that the constable's foot was trapped. It
was held that he was liable for criminal assault
Where however words take a form of a continuing threat
e.g. your money or your life, this seemingly constitutes an assault.
In Police v. Greaves, the
defendant’s threat of committing a knife attack on certain policemen if they
should uproot a plot near him or did not leave his premises immediately was
held to be assault.
INTENTION
Assault is committed where the plaintiff apprehends
the commission of a battery on his person. If the defendant does not intent to
commit a battery but induced a belief in the plaintiffs mind that he is about
to do so, he is nevertheless liable for assault.
Pointing a loaded gun at a person is of course an
assault but if the gun is unloaded it is still assault unless the person at
whom it is pointed knows this.
APPREHENSION
Suppose the plaintiff is an unusually fearful person
in whom the defendant can induce the fear of an imminent battery though a
reasonable man would not have fear in those circumstances, does the defendant
commit assault?
The better view is that the test is based upon the
subjective intention of both parties thus there is battery if the defendant
intends to create fear of commission of a battery whether or not he knows the
plaintiff to be a fearful person and the plaintiff actually has this fear.
In Smith vs. Superintendent of Working Police
Station (1983), the defendant was convicted of criminal assault
when he entered the grounds of a private house and stood at the window
seriously frightening its occupant who was getting ready for bed.
The plaintiff must however apprehend a battery thus it
is not assault to stand still at the door of a room barring the plaintiff’s
entry. It would also not be assault to falsely cry 'fire' in a crowded place.
MUST DAMAGES BE PROVED?
Both torts of assault and battery are actionable per
se. Where the defendants act has caused no damage the courts may award only
nominal damage but the court may also award aggravated damages because of the
injury to the feelings of the plaintiff arising from the circumstances of the
commission of the tort.
RULES OF BATTERY
- Absence of the plaintiff’s consent
- The act is based on an act of the defendant mere
obstruction is not battery
- A contact caused by an accident over which the
defendant has no control is not battery
- There must be contact with the person of the
plaintiff it has been observed The least touching of another person in
anger is battery
- Battery must be direct and the conduct must
follow from the defendant’s act
- The tort is actionable per se. The
essence of battery is to protect a person from un-permitted contacts with
his body. The principal remedy is monetary award in damages.
FALSE IMPRISONMENT
This is the infliction of bodily restraint which is
not expressly authorized by law. It’s an act which is directly and either
intentionally or negligently causes the confinement of the plaintiff within an
area limited by the defendant.
This tort protects a person’s freedom by making
unlawful confinement actionable.
It is possible to commit the tort without imprisonment
of a person in the common acceptance of the tort. In fact neither physical
conduct nor anything resembling prison is necessary.
If a lecturer locks his students in a lecture room
after the usual time of dismissal that is false imprisonment. So also is the
case where a person is restrained from leaving his own house or part of it or
even forcibly detained in a public street. A person is said to be a prisoner if
he has no liberty to go freely at all times to all places that he would like to
go.
It has been held in Grainger v. Hill that
imprisonment is possible even if the plaintiff is too ill to move in the
absence of restraint.
MAIN INGREDIENTS OF THE TORT
(a) Knowledge of the plaintiff
Knowledge of the restraint is not necessary but may
affect the quantum of damages. In Meeting v. Graham White
Aviation Co the plaintiff was being questioned at the defendants
company in connection with certain thefts from the defendants company. He did
not know of the presence of two works police outside the room who would have
prevented his leaving if necessary.
Held; the
defendant was liable for false imprisonment. Arcing L J said
“it appears to me that a person can be imprisoned
without his knowing. I think a person can be imprisoned while he is asleep or
in a state of drunkenness, while unconscious or while he is a lunatic. Of
course the damages might be diminished and would be affected by the question
whether he was conscious or not'
(b) Intention and directness
The tort is defined to exclude negligent imprisonment
of another person. The tort must be intentional and should be committed
directly. Where for reason of lack of intention or directness the plaintiff
cannot establish false imprisonment an action in negligence may still be
available.
In Sayers v. Badour U.D.C the
plaintiff became imprisoned inside the defendant’s toilet because of negligent
maintenance of the door lock by the defendant’s servants. In trying to climb
out of the toilet she fell and was injured. She recovered damages from the
defendant because it was a reasonable act on her part to escape from a
situation in which the defendant by his negligence had placed her.
An action for false imprisonment would not have been
available because there was no direct act of imprisonment.
(c) The restraint must be complete
There must be a total restraint placed upon the
plaintiff’s freedom of action In Bird v Jones the defendant
closed off the public footpath over one side of a bridge. The plaintiff wishing
to use the footpath was prevented by the defendant. In the plaintiffs action
one of the questions that was necessary to decide was whether the defendant's
act amounted to false imprisonment.
Held: It
did not since the defendant has not placed a total restraint on the plaintiff.
The blocking of a part of a public highway might be a public nuisance for which
the plaintiff could bring an action in tort if he could show special damage
arising from. Provided the area of restraint is total it does not seem to
matter that it is very large.
There has been a difference of opinion between the
court of appeal and the lower court the circumstances in which a person already
the lawfully imprisoned in a prison may be regarded as falsely imprisoned.
In R v. Deputy Governor of Prison, there
was an agreement that imprisonment under intolerable conditions would amount to
false imprisonment. The C.O.A however required knowledge of those conditions by
the defendant but the lower courts thought that a defense would exist here
under the provisions of the prisons Act.
There is of course false imprisonment where a prisoner
is detained beyond the legal date of his release. (Cowell v. Corrective
Services Commissioner)
RULES OF THE TORT
- The tort must be intentional
- It is immaterial that the defendant acted
maliciously
- The restraint or confinement must be total.
However, it need not take place in an enclosed environment
- It has been observed every confinement of a
person is an imprisonment whether it be in a common prison, private house
or in the stocks or even forcibly detaining one in the public
- The boundary of the area of confinement is fixed
by the defendant. The barriers need not be physical. A restraint affected
by the assertion of authority is sufficient.
- The imprisonment must be direct and the plaintiff
need not have been aware of the restraint
- The tort is actionable per se.
- The principal remedy is a monetary award in
damages.
PROTECTION OF CHATTELS OR GOODS
Owners of goods are entitled to enjoy their possession
and control and their use without any interference. To protect goods the common
law developed 3 torts namely;
- Detinue
- Trespass to goods
- Conversion
DETINUE
This is the unlawful detention of goods. It is the
oldest tort relating to the protection of the chattels and protects possession
of goods by the owner. The plaintiff must prove:-
- Right to immediate possession
- That the defendant detained the goods after the
plaintiff demanded their return. The plaintiff is entitled to damages for
the detention.
TRESPASS TO GOODS
This is the intentional or negligent interference of
goods in possession of the plaintiff. This tort protects a party interest in
goods with regard to retention their physical condition and invariability.
Types/Forms of Trespass
- Taking a chattel out of the possession of another
- Moving a chattel
- Contact with a chattel
- Directing a missile to a chattel
Rules/Requirements of the Tort
- The trespass must be direct
- The plaintiff must be in possession of the
chattel at the time of interference
- The tort is actionable per se
- The principal remedy is a monetary award in
damages
The defenses available to this tort include:-
- Plaintiff’s consent
- Necessity
- Mistake
CONVERSION
This is the intentional dealing with goods which is
seriously inconsistent to possession or right to possession of another person.
This tort protects a person’s interest in dominion or control of goods.
The plaintiff must have possession or the right to immediate
possession. However, a bailee of goods can sue 3rd parties in
conversion so can a licensee or a holder of a lien or a finder. Any good or
chattel can be the subject matter of conversion. There must be physical contact
resulting in interference with the goods.
ACTS OF CONVERSION
- Taking goods or disposing; it has been observed
that to take a chattel out by another’s possession is to convert it or
seize goods under a legal process without justification is conversion.
- Destroy or altering
- Using a person’s goods without consent is to
convert them
- Receiving: the voluntary receipt of another’s
goods without consent is conversion.
However, receiving of another’s goods in
certain circumstances is not actionable for example goods received;-
- In a market overt; the purchaser acquires a good
title
- Estoppel; if the true owner of the goods is by
his conduct denying the sellers the right to sell, the buyer acquires a
good title to the goods
- Goods received from a factor or a mercantile
agent
- A negotiable instrument received in good faith
- Goods received from a person who has a voidable
title before the title is avoided
- Dispositon without delivery - a person who sells
another goods without authority but without delivering them to the buyer
converts them
- Disposition and delivery - A person who sells
another’s goods without authority and delivers the same to the buyer is
guilty of conversion
- Mis-delivery of goods a carrier or a warehouse
man who delivers the goods to the wrong person by mistake is guilty of
conversion
- Refusal to surrender another’s goods on demand
The principal remedy available is a monetary award in
damages and the plaintiff is entitled to the value of the goods he has been
deprived. The value s determined as per the date of conversion.
If the plaintiff suffers a pecuniary loss as per the
result of the conversion he is entitled to special damages.
DEFAMATION
Defamation is the publication of a statement which
reflects on a person’s reputation and tends to lower him in the estimation of
right- thinking members of the society generally or tends to make them shun or
avoid him.
Defamation is sometimes defined simply as the
publication of a statement which tends to bring a person “into hatred, contempt
or ridicule”; but this is not quite exact for a statement may possibly be
defamatory even if it does not excite in reasonable people feelings quite so
strong as hatred, contempt or ridicule and the definition is defective in
omitting any reference to the alternative of tending to shun or avoid him.
This addition is necessary, for falsely imputing
insolvency or insanity to a man is unquestionably defamation, although, far
from tending to excite hatred, contempt or ridicule, it would rouse only pity
and sympathy in the minds of reasonable people, who would nevertheless be
inclined to shun his society.
The tort of defamation is of 2 kinds:
· Libel
· Slander
DIFFERENCES BETWEEN SLANDER AND LIBEL
In libel –
the defamatory statement is made in some permanent form such as writing,
printing, and pictures
In slander – The statement is made in spoken words or in
some other transient form whether visible or audible such as gestures or
inarticulate but significant sounds.
It has been stated that Slander is addressed to the
ear while Libel is addressed to the eye. This distinction is however not
accurate because Slander can as well be addressed to the eye as in the case of
defamatory gestures whereas libel can be addressed to the ear as in the case
of Youssoupoff v. M.G.M Picture Ltd where Slesser L.J. stated
that:
“There can be no doubt that so far as the photographic
part of the exhibition is concerned, that is a permanent matter to be seen by
the eye, and is proper subject of an action eye, and is the proper subject of
an action for Libel.”
Thus the ‘talking’ film, though generally addressed to
the ear, was in permanent form thus making it a Libel.
There are however clear differences between Libel and
Slander;
1. Libel
is defamation in permanent form whereas Slander is defamation in transient
form.
2. Libel
is not merely actionable as a tort but is also a criminal offence whereas
Slander is a civil wrong only.
3. All
cases of Libel are actionable per se but Slander is only
actionable on proof of actual damage with 4 exceptions under the Defamation
Act, which are actionable per se.
CASES OF SLANDER THAT ARE ACTIONABLE PER
SE:
1. Imputation of a Criminal Offence
Where the defendant makes a statement, which imputes a
criminal offence punishable with imprisonment under the Penal Code, then such
Slander will be actionable per se. There must be a direct
imputation of the offence and not merely a suspicion of it and the offence must
be punishable by imprisonment in the first instance.
If the Slander goes into details of the offence, it is
not actionable per se if the details are inconsistent with
another.
2. Imputation of a contagious or
infectious disease
This is actionable per se as it is
likely to make other people to shun associating with the plaintiff.
This exception always includes sexually transmitted
diseases and in olden times the diseases of plague and leprosy.
3. Imputation of unfitness, dishonesty or
incompetence in any office, profession, calling, trade or business held or
carried on by the plaintiff at the time when the Slander was published
This is the most important exception under the
Defamation Act, 1952 (English) S.2 provides “in an action of Slander in respect
to words calculated to disparage the plaintiff in any office, profession,
calling, trade or business held or carried on by him at the time of
publication, it shall not be necessary to allege or prove special damage
whether or not the words are spoken of the plaintiff in the way of his office,
calling, trade or business.”
It follows that any words spoken of a man which are
reasonably likely to injure him in his office, profession, calling, trade or
business will be actionable per se. It matters not how humble the
office may be, so long as it is lawful.
4. Imputation of unchastity or adultery of
any woman or girl
Words spoken and published which impute unchastity or
adultery to any woman or girl, shall not require proof of special damage to
render them in actionable.
In Kerr v. Kennedy, the court was of
the opinion that the term “unchastity” includes lesbianism.
ESSENTIALS OF DEFAMATION GENERALLY
Whether defamation consists of Libel or Slander the
following requisites are common to both, and must be proved by the plaintiff.
i. The
words must be defamatory
ii. They
must refer to the plaintiff
iii. They
must be maliciously published.
1. THE WORDS MUST BE DEFAMATORY
A defamatory statement is one which has a tendency to
injure the reputation of the person to which it refers. The statement is judged
by the standards of the ordinary right thinking members of the society and the
test is an objective one.
It is no defence to say that the statement was not
intended to be defamatory, a tendency to injure or lower the reputation of the
plaintiff is enough and a statement may be defamatory although no one to whom
it is published believes it to be true.
Abuse
Mere insult or vulgar abuse does not amount to
defamation.
The manner in which the words were spoken and the
meaning attributed to them by the hearers is however important in determining
whether the words are defamatory or simply abusive.
In Penfold v. West Cote (1806) the
defendant called out “why don’t you come out you black guard, rascal,
scoundrel, pen-fold, you are a thief,” it was left to the jury to decide
whether the general abusive words accompanying ‘thief’ reduced ‘thief’ itself
to a mere abuse. The jury gave a verdict that the term ‘you are a thief’ was
not a mere abuse but was defamatory.
The speaker of words must thus take the risk of his
hearers construing them as defamatory and not simply abusive and the burden is
upon him to show that a reasonable man would not have understood them as
defamatory.
Interpretation
In interpreting a defamatory statement, the meaning
attached to it is not necessarily the meaning with which the defendant
published it but that which is or may be reasonably given by the person to whom
it is published.
The fact that the defendant did not intend to lower
the reputation of the plaintiff is immaterial, so long as the statement has a
defamatory meaning to those whom he makes it. On the other hand, a defamatory
purpose will not render the defendant liable if the statement has no defamatory
significance to those it is published.
A statement is prima facie defamatory
when its natural, obvious and primary meaning is defamatory. Such a statement
is actionable unless its defamatory significance is explained away
successfully. The burden of such an explanation rests upon the defendant.
Innuendo
The words which the plaintiff complains may be
defamatory in the light of facts and circumstances known to persons to whom
they were published.
An innuendo may thus make words,
which are not otherwise defamatory in the natural and ordinary meaning, to be
defamatory. The burden is on the plaintiff to prove the meaning, which he
understood by persons having knowledge of particular facts.
In Tolley v. Fry and Sons Ltd (1931) the
plaintiff, a famous amateur golfer, was caricatured by the defendant, without
his knowledge or consent in an advertisement of their chocolate bar which
depicted him with a packet of it protruding from his pocket, the excellence of
which, was likened in some doggerel verse, to the excellence of the plaintiff’s
drive. The plaintiff had let his portrait exhibited for advertisement, that he
had thus prostituted his reputation as a famous amateur golfer. It was held
that the caricature, as explained by the evidence, was capable of being thus
constructed; for golfers testified that any amateur golfer who assented to such
advertisement may be called upon to resign his membership of any reputable
club.
Knowledge of the innuendo by the
defendant is immaterial and the defendant is nevertheless liable for a
statement he believes to be innocent but is in fact defamatory by reason of
facts unknown to him but known to the persons to whom he makes it.
In Cassidy v. Daily mirror Newspapers
Ltd (1929) the defendants published in their newspapers a photograph
of one Cassidy and Miss X together with the words “Mr. Cassidy, the race-horse
owner, and miss X, whose engagement has been announced.”Mrs. Cassidy was, and
was known among her acquaintances, as the lawful wife of Mr. Cassidy although
she and Cassidy were not living together. The information on which the
defendants based their statement was derived from Cassidy alone and they made
no effort to verify it form other sources. Mrs. Cassidy sued for Libel,
the innuendo being that Cassidy was not her husband but lived
with her in immoral cohabitation. It was held that the innuendo was
established and that as the publication conveyed to reasonable persons as an
aspersion (attack) on the plaintiff’s moral character, she was entitled to
damages.
2. THE WORDS MUST REFER TO PLAINTIFF
The defamatory statement must be shown to refer to the
plaintiff. A court has power to dismiss an action on the ground that no
reasonable person could conclude that the plaintiff should be identified with
the person mentioned in the statement complained as a defamatory.
If the plaintiff is mentioned by name, there is
usually no difficulty. It is howevever sufficient in such a case the statement
was understood, even by one person, to refer to the plaintiff, even though it
remained hidden to all others.
The question is not whether the defendant intended to
refer to the plaintiff but is whether any person to whom the statement was
published might reasonably think that the plaintiff was referred to. In Hulton
v. Jones (1910), a newspaper published by a humorous account of a
motor festival at Dieppe in which one Artemus Jones displayed as a
churchwarden at Peckham was accused of living with a mistress in France.
The writer of the article was ignorant of the existence of any person by the
name as that of a fictious character in the article. However, there was in fact
a barrister named Artemus Jones, who was not a church warden, did not live at
Pekham and had not taken part in the Dieppe festival. He sued for
libel. His friends swore that they believed the article to refer to him. It was
held that the newspaper was responsible for libel. On appeal to the House of
Lords stated that:
“The decision was unanimously affirmed by the House of
Lords who held further that if reasonable people would think the language to be
defamatory of the plaintiff, it was immaterial that the defendants did not
intend to defame him.”
In Newstead v. London Express Newspapers Ltd, the
court of appeal carried Hulton-v- Jones further
in the two dimensions. They held that:
“The principle applies where the statement truly
relates to a real person A, and is mistakenly but reasonably thought to refer
to another real person B.”
Absence of negligence on the defendant’s part is
relevant only in the sense that it may be considered by the jury in determining
whether reasonable people would regard the statement as referring to the
plaintiff; otherwise it is no defence.
In Newsteads case, The
defendant published an account of a trial of bigamy of Harold Newstead a 30
year old Camber well barman but it was untrue of the plaintiff, Harold
Newstead, aged 30 years, who was a hairdresser in Camber well. It was held that
the defendants were liable as reasonable persons would have understood the
words to refer to the plaintiff.
Defamation of a Class
A problem arises where a defamatory statement referred
to a class to which the plaintiff belongs. The test is the same i.e. would a
sensible ordinary person identify the plaintiff as the person defamed?
In Eastwood v. Holmes, Willes
J stated:
“If a man wrote that all lawyers were thieves, no
particular lawyer could sue him unless there was something to point to the
particular individual.”
The question of whether an individual can sue in
respect of words, which are directed against a group, or body or class of
persons generally, was considered by the House of Lords in Knuppfer
v. London express Newspaper Ltd (1944) and the law may be
summarized as follows:
1. The
question is whether the words are published ‘of the plaintiff’ in the sense
that he can be said to be personally pointed at.
2. Normally
where the defamatory statements is directed to a class of people no individual
belonging to the class is entitled to say that the words were spoken of him. As
per Lord Porter, ‘no doubt it is true to say that a class cannot be defamed as
a class, nor can an individual be defamed by a general reference to the class
to which he belongs.’
3. Words
which appear to apply to a class may be actionable if there is something in the
words, or the circumstances under which they were published which indicates a
particular plaintiff or plaintiffs.
4. If
the reference is to a limited class or group e.g. trustees, members of a firm,
tenants of a particular building etc so that the words can be said to refer to
each member, all will be able to sue.
5. Whether
there is any evidence on which the words can be regarded as capable of
referring to the plaintiff is a question of law for the judge. If there is such
evidence then it is a question of fact whether the words lead reasonable people
who know the plaintiff to the conclusion that they do refer to him.
In Anson v. Stuart, a
newspaper paragraph stated, ‘this diabolical character, like Polyphemus the man
eater, has but one eye, and is well known to all persons acquainted with the
name of a certain noble circumnavigator.’ It was clear that the plaintiff was
the person indicated on this giving proof that he had one eye and bore a name
similar to that of Anson, the famous admiral.
3. THE WORDS MUST BE ‘MALICIOUSLY’
PUBLISHED
Publication is communication of the words to at least
one person other than the person defamed.
Communication to the plaintiff himself is not enough
for defamation constitutes injury to ones reputation, and reputation is what
other people think of a man, not his own opinion of himself.
It is normally said that the words must be published
maliciously but this is purely formal, and is usually inserted in the
plaintiff’s statement of claim for the purpose of inflating damages where there
has been spite of deliberateness. Express statements made in the sense of spite
or ill motive will usually defeat the defenses of fair comment and qualified
privilege.
Communication between spouses about a 3rd party
is not publication. This is explained by the fiction of unity between husband
and wife. A communication by a third party to one spouse about the other is
however publication.
By dictating a defamatory letter to his secretary, an
employer commits Slander. If the secretary reads it back to him or hands over
the typed copy, she is not making a fresh publication.
A statement not heard by the recipient because e.g. he
is deaf or he does not understand the language is not treated as having been
published nor is a person liable if a 3rd party on his own
initiative hears or sees the defamatory matter.
However he will be liable for the statement which he
intended a 3rd party to know or should have foreseen might come
to his attention.
In Huth v. Huth, opening
a letter sent through a butler out of curiosity and in breach of his duties was
held not to amount to publication by the defendant. However, per Lord Reading:
“There would have been publication by the defendant if
the letter, whether sealed or unsealed, had not been marked “private” and had
been opened and read by the plaintiff’s correspondence clerk in the course of
his duty. A defendant should anticipate that a husband might open his wife’s
letters and equally a letter addressed to a businessman may be opened by a
secretary and therefore the defendant and will thus be responsible for the
resulting publication unless the letter was clearly marked ‘personal’ or
‘private’.”
The burden of proof of publication is on the plaintiff
but in many circumstances this burden is eased by certain rebuttable
presumptions of fact e.g. an open postcard or a telegram message is deemed to
have been published to those who would, in the ordinary course of transmission,
normally see it.
Spoken words are deemed to have been published to
people within earshot.
REPETITION OF A STATEMENT
One who respeats a defamatory statement made by
another person is liable for the repetition and this constitutes a fresh publication
even though the person does not know that the statement is defamatory.
However, the original maker of the statement is liable
for such re-publication if he has authorized it or if it seems reasonably
foreseeable.
In Eglantine Inn Ltd v. Smith, the
printers were held liable on this principle because they clearly envisaged the
distribution of the defamatory matter among the public and could, therefore be
deemed to have authorized it. Every repetition is a fresh publication that
gives rise to fresh cause of action against each successive publisher.
In Vizentally v. Mudle’s select
library Ltd, the owners of a circulating library were held liable for
allowing people to read some books which the publisher had asked them to return
as they might contain defamatory matter.
DEFENCES OF DEFAMATION
1. UNINTENTIONAL DEFAMATION
Under common law, the fact that the maker of a
statement was unaware of the circumstances making it defamatory does not
absolve him from liability. The Defamation Act seeks to redress this situation
by enabling the defendant to make an ‘offer of amends’ for the innocent
defamation.
Under the Act, words shall be treated as innocently
published in relation to another person if and only if:
1. The
publisher did not intend to publish them of and concerning that other person,
and did not know of circumstances by virtue of which they might be understood
to refer to him; or
2. The
words were not defamatory on the face of them, and the publisher did not know
of circumstances by virtue of which they might be understood to be defamatory
of that person, in either case, the publisher has exercised all necessary care
in relation to the publication.
The Defamation Act provides further that an offer of
amends is an offer;
a) In
any case to publish or join in the publication a suitable correction and
apology;
b) Where
copies of a document or record containing the words have been distributed by or
with the knowledge of the person making the offer, to take such steps as are
reasonably practicable on his part to notifying persons to whom copies have
been so distributed that the words are alleged to be defamatory of the party
aggrieved.
If the offer of amends is acceptable by the party
aggrieved, and duly performed, no proceedings for Libel or Slander may be taken
or continued by that party making the offer in respect of the publication in
question.
If the offer of amends is not accepted by the party
aggrieved, then it is a defence in any proceedings by him for the Libel or
Slander to prove that:
a) The
words were published innocently in relation to the plaintiff
b) The
offer was made as soon as it practicable after the defendant received notice
that they were or might be defamatory to the plaintiff; and
c) The
words were published without malice.
This provision of the Defamation Act is said to have
mitigated the rigidity of Common Law only partially as an offer of amends has
so many qualifications and technical requirements that it is unlikely that it
will avail many defendants.
2. CONSENT AND ASSUMPTION OF RISK
If the plaintiff expressly or impliedly assents to the
publication of the matter which is true on the face of it, the defendant is not
liable; and this is so even if it appears that some persons may interpret the
statement in a sense much more prejudicial to the plaintiff that is warranted
by the plain meaning of the words.
In Cookson v. Harewood, Scrutton
L.J said
“If you get a true statement and an authority to
publish the true statement, it does not matter in the least what people will
understand it to mean.”
The defence of consent has been regarded as an
instance of voluntary assumption of risk (volenti non fit injuria). This
defence was upheld in Chapman v. Elsemele where the plaintiff
by being a member of the Jockey Club was deemed to have consented to
publication of a report in the Jockeys Journal.
3. JUSTIFICATION OR TRUTH
The plaintiff does not have to prove that the
statement complained of was false. On the contrary the burden is on the
defendant to prove that the statement was true.
Truth is a defense because the law will not permit a
person to recover damages in respect of any injury to a character, which he
either does not have or ought not to posses.
The defendant must establish the truth of the precise
charge that has been made which is ultimately a matter of interpretation of the
facts.
In Wakley v. Cooke, the defendant
called the plaintiff a ‘Libelous Journalist.’ He proved that the plaintiff had
been found liable for Libel once. The court took the view that these words did
not mean that the plaintiff was held liable on one occasion but mean that the
Journalist habitually libeled people. The defence of truth accordingly failed.
The defendant must justify the statement by showing
that it was substantially accurate. The standard of proof for jurisdiction is
the normal civil one of balance of probabilities, but as is other civil cases,
the seriousness of the defendant’s allegation may be taken into account in
determining whether he has discharged that burden.
The defence will not fail if the truth of several
charges is not established provided that having regard of the truth of the
remaining charges, the charge not proved does not materially injure the
plaintiff’s reputation.
In Alexander v. North Eastern Railway, the
defendant published a statement that the plaintiff had been sentenced to a fine
of 1 to 3 weeks imprisonment. They justified this by proving that he had
actually been sentenced to a fine of 1 or 2 weeks imprisonment. The statement
was held to be substantially true.
One difference between the defence of justification
and the defenses of fair comment and qualified privilege is that even malice on
the part of the defendants does not deprive him of the defence of
justification.
The defence of justification is a dangerous defence if
the defendant fails to prove the truth of the statement he has made he may end
up paying aggravated damages as insisting that a statement is true without
proving amounts of fresh publication hence fresh defamation.
In Broadway Approvals Ltd v. Odhams press Ltd, per
Davis L.J;
“A plea of justifications should not, of course be
made unless the defendant has evidence of the truth of the statement.”
4. FAIR COMMENT
This defence stems from the belief that honest and
fair criticism is indispensable in every freedom loving society. The law weighs
the interest of the plaintiff against the freedom of speech and it is for the
judge to rule whether any comment was called for in particular situation and to
say whether the statements are of facts or opinions, and if they are opinions,
whether they are honest and fair.
The requirements of this defence are as follows:
1. Public interest
The matter commented on must be of public interest.
In London Artist Ltd v. Litler per
Lord Denning M.R
“Whenever a matter is such as to affect people at
large so that they may be legitimately interested in or concerned at what is
going on or what may happen to them or to others than it is a matter of public
interest on which everyone is entitled to make fair comments.The reference to
people at large should not be taken to suggest that if the statement complained
of refers to one person or a few persons, it can never be of public interest.”
Matters of government, National and Local Management
of public and religious institutions, the conduct of foreign policy and even
the behavior of holders of public office are matters of public interest.
2. The comment must be an opinion on true
matters
Fair comment is available only in respect of
expression of opinion. In fair comment it is not necessary to prove the truth
of the comment, but that the opinion was honestly held.
The defence of fair comment only lies on facts which
are proved to be true, and on statements of facts not proved to be true but
which were made on the privileged occasion.
The comment itself need not be true, though. It must
be honestly made, but the facts upon which the comment itself need not be true
unless they are privileged.
If the facts are untrue, the defendant will not
succeed in fair comment merely by proving that his comment is honestly made.
In Merivale v. Carson, it was held that a
defendant who implied that a play was adulterous could not rely on this as a
fair comment where the court found as a fact that adultery was not dealt with
in the play.
Sometimes it is difficult to differentiate a statement
of facts and a comment e.g. a statement that x was drunk last night and his
behavior was disgraceful – such a statement is of opinion. If x’s behavior
after drinking was in fact disgraceful, then it is a statement of fact. If
however, the second statement is a statement of opinion, then it is the subject
of a fair comment.
Every statement must be taken on its merits. The same
words may be a statement of facts or an opinion depending on the context. To
say that “A is a disgrace of human nature” is an allegation of fact. But to say
“Y murdered his father and is therefore a disgrace to human nature,” the latter
words are plainly a comment on the former.
3. The comment must be fair
The comment must be honest and not actuated by malice.
For comment to be fair it must first be based upon true facts in existence when
the comment was made.
One cannot invent untrue facts about another then
comment on them. The fair comment may however be based on an untrue statement
which is made by some people upon a privileged occasion e.g. a statement of a
witness in the course of judicial proceedings, and properly attributed to him.
The comment held should however be based on the untrue statement of another
person, not the person making the comment.
In assessing fairness, it is important that the
defendant honestly holds is opinion. It is not for the court to substitute its
own judgment as to what is fair.
The test given by Lord Esher M.R. in Merivale
v. Carson was:
“Would any fair man, however prejudiced he may be,
however exaggerated or obstinate his views, have said that which this criticism
said of the work which is criticized.”
4. Absence of malice
The defence will be defeated by proof of malice, which
here means, “evil motive or spite.”
In Thomas v. Bradbury, Agnew & co Ltd,
the court of appeal held that a book reviewer for punch magazine was hostilely
motivated against the plaintiff’s books facts which are evident not only by the
review he wrote but also by his behavior in the witness box. His behavior
displayed malice which negated the plea of fair comment.
5. PRIVILEGE
There are two categories of privilege:
1. Absolute
privilege
2. Qualified
privilege
1. Absolute Privilege
A privileged statement may be defined as one which is
made in such circumstances as to exempt one from the rule that a person attacks
the reputation of another at his own risk.
A statement is said to be absolutely privileged when
it is of such a nature that no action will lie for it, however false or
defamatory it may be and even though it is made maliciously. The defence is
available in the following cases:
a) Any
statement made in the course of and with reference of judicial
proceedings by any judge, jury, party, witness or advocate.
b) Fair
and accurate report in any newspaper of proceedings heard before any court.
c) Any
statement made in parliament by a member of parliament
d) Reports,
papers, votes and proceedings published by the order and / or under the
authority of the National Assembly.
e) Communication
made by one officer of state to another in the course of his
official duty.
f) Communication
between an advocate and his client in connection with litigation.
g) Communication
between husband and wife.
2. Qualified privilege
It is limited in scope.
When an occasion of qualified privilege exists, a
person, provided he is not actuated by malice is entitled to make defamatory
statements about another. Like absolute privilege, here the right freedom of
speech prevails over the right of reputation but only to a limited extent.
The statement must be made honestly and without any
indirect or improper motives. Qualified privilege is thus an intermediate case
between absolute privileges but only to a limited extent.
The statement must be made honestly and without any
indirect or improper motives. Qualified privilege is thus an intermediate
case between absolute privilege and absence of privilege.
The general principle is that the statement is
protected if it is fairly made by a person in the discharge of some public or
private duty whether legal or moral or in the conduct of his own affairs in
maters where his interest is concerned.
No complete list of such occasion is possible but it
is generally agreed that the main instances are:
a) Statements
made in the performance of a duty;
A statement is conditionally privileged if this is
made in the performance of any legal, social or moral duty, imposed upon the
person making it.
The privilege is that of the publisher, the person to
whom the statement is published needs no privilege because he commits no tort.
Never the less it is essential that the person to whom the statement is made
has a corresponding interest or duty to receive it. This is not to say
that both parties must have a duty or both an interest; one may have an
interest and the other a duty.
The duty need not be the one enforceable by law, it is
sufficient that by the moral standards of right conduct prevalent in the
community, the defendant lay under an obligation to say what he did. It is not
enough that he believed himself to be under such duty / obligation; it is for
the judge to decide whether on facts such a duty existed.
A father or a near relative may warn a lady as to the
character of the man whom she proposes to marry (Todd v. Hawkins).
In Watt v. Longsdon, the defendant, a
company director, informed the chairman of the board of directors of his
suspicion that the plaintiff, an employee of the company, was misbehaving with
women. He also informed the plaintiff’s wife.
Held: That the communication to the Chairman was privileged
but not to the wife for although she had an interest in hearing about the
allegation, the defendant had no moral or social duty to inform her.
b) Statements
made in protection of an interest
Even when there is no duty to make the statement, it
is nevertheless privileged if it is made in the protection of some lawful
interest of the person making it, e.g. if it is made in the defence of his own
property or reputation but here also there must be a reciprocity i.e. there
must be an interest to be protected on one side and a duty to protect that
interest on the other.
In Adam v. Ward, the plaintiff made a
complaint in the House of Commons against the General Scobell containing
charges of a wounding character. The General Scobell, as he was compelled to do
by regulations referred the matter to the Army council which after
investigations found that the attack was unjustifiable. The army council
ordered the defendant to publish in the newspaper a letter to the General
Scobell vindicating him and also containing statements defamatory of the
plaintiff. The plaintiff sued.
Held: The
occasion of publication was privileged and that the privilege was not destroyed
either by the number of people whom the publication might reach or by reason of
the fact that the publication contained matter defamatory of the plaintiff had
publicity attacked the character of the defendant.
In Osborn v. Boutler, where
some brewers answered a complaint by a publican of the poor quality of their
beer by voicing a suspicion that the publican had watered the beer, it was held
that the latter publication was covered by privilege.
The same principle is applicable even when the
interest of the defendant is merely the general interest which he possesses in
common with all others in the honest and efficient exercise of public officials
of duties entrusted to them.
Thus any member of public may make charges of
misconduct against any public servant and the communication may be privileged,
but the charge must be made to the proper person, i.e. those who have a
corresponding interest.A communication to the wrong person e.g. a publication
to the world at large in a newspaper or otherwise is an excess of privilege and
the privilege will thereby be cost.
c) Fair
and accurate reports of parliamentary proceedings
This qualified privilege protects the advantage of
publicity against any private injury resulting from the publication. It is not
limited to newspaper reports and covers other reports e.g. Broadcast reports.
In order to qualify as fair and accurate the report does not have to be a full
précis of the debate; a ‘parliamentary sketch’ may properly select those
portions of the debate, which will be of public interest. What matters is
whether the report is fair and accurate in so far as the debate concerned the
plaintiff’s reputation.
d) Communication
between advocate and client
This is covered by both qualified and absolute
privilege. Professional communication between an advocate and client in
connection with litigation is absolutely privileged as was held in More
v. Weaver.
Other communications which have nothing to do with
litigation e.g. the drawing of a client’s will are covered by qualified
privilege. The general restriction is that the communication has to be a
professional one for it to be privileged and also that the relationship of
advocate – client must be proved.
What passes between and advocate and a client if the
relationship has been established is privileged if, within a very wide and
generous ambit of interpretation, it is fairly referrable to the relationship,
or, put in another way, per Lord Atkin in Minter v.
Priest.;
“If it consists of personal communications
passing for the purpose of getting or giving professional advice.”
This would exclude a piece of gossip intersected by
the client in a conversation on, say, land registration e.g. “have you heard
that Jones has run off with Mrs. Brown?”
MALICE
The defence of a qualified privilege is negated by
malice. Malice means the presence of improper motive or even gross and
unreasoning prejudice.
A statement is malicious if it is made for some
purpose other than the purpose for which the law confers the privilege.
In Horrocks v. Lowe the
court stated that malice destroys the privilege and leaves the defendant
subject to the ordinary law by which a mistake, however reasonable, is no
defence.
The law requires that a privilege shall be used
honestly, but not that it should be used carefully.
LIMITATION OF ACTIONS
Causes of actions are not enforceable in perpetuity,
they must be enforced within the duration prescribed by law failing which they
become statute barred.
The Limitations of Actions Act[5] prescribes
the duration within which causes of action must be enforced in Kenya. For
example:
|
Cause of Action
|
Years
|
|
Breach of Contract
|
6
|
|
Negligence
|
3
|
|
Defamation
|
1
|
|
Rendering an Account
|
6
|
|
Prescriptive Rights
|
20
|
|
Enforcing a judicial award
|
6
|
|
Enforcing a judgement
|
12
|
|
Recovery of rent
|
6
|
|
Recovery of land
|
12
|
The purpose of the Limitation of Actions Act in fixing
the duration is to facilitate the administration of justice by ensuring that
cases are heard as and when they occur. The duration also ensures that cases
are decided on the best available evidence. It also ensures that the hearing of
cases is spread out.
When does time start running?
As a general rule it strats running from the date a
cause of action arises e.g the date of a breach of contract or the date when
the accident occurred. However, the running of time may be postponed in certain
circumstances:
a) When
the propective defendant is the president or is exercising the functions of the
office of the president, time strats running when he ceassees to hold office or
stops exercising the functions or dies, whichever comes first.
b) If
the prospective defendant or plaintiff is an infant/ minor, time starts running
when he attains the age of majority (18 years) or dies, whichever comes first
c) If
the prospective plaintiff is a person of unsound mind, time starts running when
he becomes of sound mind or dies, whichever comes first.
d) If
the prospective plaintiff is laboring under mistake, fraud or ignorance of
material facts, time starts running when he ascertains the true position or
when a reasonable person would have so ascertained.
When time starts running, it generally runs through
and the action becomes statute-barred in which case the defendant escapes
liability.
However, a statute barred action may be proceeded with
“with leave of the court” if the court is satisfied that the delay was
justifiable after considering the circumstances of the case.
CHAPTER SUMMARY
WHAT IS A TORT?
A tort is a civil wrong whose remedy is a common
law action for damages or other relief (not every wrong is a tort).A single
action may give rise to a tort and a crime.
The law of tort protects various personal and
proprietary interests.
GENERAL DEFENCES IN TORT LAW
1. Plaintiff’s
default/contributory negligence
2. Act
of god
3. Volenti
non fit injuria
4. Neccessity
and private defense
5. Statutory
authority
ESSENTIALS OF DEFAMATION GENERALLY
Whether defamation consists of Libel or Slander the
following requisites are common to both, and must be proved by the plaintiff.
1. The
words must be defamatory
2. They
must refer to the plaintiff
3. They
must be maliciously published.
DEFENCES OF DEFAMATION
1. Unintentional
defamation
2. Consent
and assumption of risk
3. Justification
or truth
4. Fair
comment
The requirements of this defence are as follows:
a. Public
interest
b. The
comment must be an opinion on true matters
c. The
comment must be fair
d. Absence
of malice
5. Privilege
There are two categories of privilege:
a) Absolute
privilege
b) Qualified
privilege
REQUIREMENTS OF THE RULE IN RYLANDS
v. FLETCHER
1. The
thing
2. Accumulation
3. Non-natural
user of land
4. Escape
5. Damage
DEFENCES TO THE RULE IN RYLANDS v.
FLETCHER
1. Consent
of the plaintiff
2. Contributory
negligence (plaintiff’s own default)
3. Act
of third parties (act of a stranger)
4. Act
of god
5. Statutory
authority.
ELEMENTS OF NEGLIGENCE
The tort of negligence consists of three elements
which a plaintiff must prove in any action based on negligence.
a) Legal
duty of care.
b) Breach
of duty.
c) Loss
or damage.
DEFENCES TO NEGLIGENCE
1. Contributory
negligence
2. Voluntary
assumption of risk (volenti non fit injuria)
3. Statutory
authority
CHAPTER QUIZ
1. Name
atleast 5 torts
2. List
4 defences to torts.
3. What
are the main elements of the tort of Negligence.
CHAPTER QUIZ ANSWERS
1. Types of Torts
1. Negligence.
2. Defamation.
3. Trespass.
4. Vicarious
liability.
5. Nuisance.
2. Defences to torts
1. Plaintiff’s
default/contributory negligence
2. Act
of god
3. Volenti
non fit injuria
4. Neccessity
and private defense
5. Statutory
authority
3. Elements of negligence
There are 3 elements which a plaintiff must prove in
any action based on negligence:
a) Legal
duty of care.
b) Breach
of duty.
c) Loss
or damage.
SAMPLE EXAMINATION QUESTIONS
QUESTION ONE
a) Explain
the legal principle in the rule in Rylands v. Fletcher
b) Explain
the defenses available to a person sued in an action brought against him under
this rule
c) Jambazi
sneaked into Green’s compound with the intention of breaking into his car and
stealing a radio cassette. As he was walking towards the car park he fell into
a pitch which Green had dug to construct a water reservoir’s a result Jambazi
was seriously injured.Jambazi now seeks your legal advice as to whether he can
sue Green.State the legal principles available to the above facts and advise
Jambazi
QUESTION TWO
With reference to Occupier’s Liability act
a) Define
an occupier
b) Explain
its main provisions in relation to a person visiting premises
c) Advice
an occupier whose employee, a window cleaner was injured when a window pane was
a shattered
d) Outline
the general defenses available to the occupier against liability to a
trespasser
QUESTION THREE
a) Indicate
the ways in which a tort of conversion may be committed
b) Explain
the legal principles applicable in each of the cases listed below;
- B entered into C’s land to recover a time rabbit
that belonged to B’s children
- H pasted a poster on D’s wall advertising a disco
dance competition meant for raising funds for a local charity
- F cut down the branches of a mango tree belonging
to G his neighbor which had extended to his land. He picked the ripe
mangoes from the fallen branches and gave all of them to the children in
his vicinity.
QUESTION FOUR
a) Discuss
the legal principles which govern limitations of actions in tort
b) Distinguish
between trespass and conversion
c) Explain
the circumstances under which trespass to persons would be justified under law
[1] Cap
40 Laws of Kenya
[2] By
the Family Law Review Act of 1969
[3] A
person appointed by the court to protect a minor's interests in proceedings
affecting his interests (such as adoption, wardship, or care proceedings). They
are currently referred to as children’s guardians.
[4] 34
Laws of Kenya
[5] Cap
22 Laws of Kenya
