UNIVERSITY OF LUSAKA
SCHOOL OF LAW
MODULE
LLB
LAW OF TORTS (L140)
Kenneth Mulife
LLB (UNZA), LLM (UZ), AHCZ
COURSE CONTENT
UNIT 1: INTRODUCTION TO THE LAW OF TORT
1.1 Meaning and Functions of the Law of Tort
1.2 Definition of Tortious Liability
1.3 Law of Tort Distinguished from Criminal Law and Contract Law
1.4 Faulty and Non-Faulty Liability; Joint and Several Tortfeasors
UNIT 2: TRESPASS TO THE PERSON
2.1 Assault and Battery
2.2 False Imprisonment
2.3 Defences and Remedies to Assault, Battery and False Imprisonment
UNIT 3: NEGLIGENCE
3.1 Donoghue v. Stevenson
3.2 Duty of Care: Test for determining existence of a duty of care (Foresight,
Proximity)
3.3 Breach of Duty of Care: Standard of Care and the ‘Reasonable Man’ Test
3.4 Consequent Damage
UNIT 4: CAUSATION AND REMOTENESS OF DAMAGE
4.1 Relationship between Causation and Remoteness of Damage
4.2 Causation: Novus Actus Interventions; Proofing Negligence and Res Ipsa
Loquitur
4.3 Remoteness of Damage
4.4 Negligence Defences: Volenti non fit injuria; Contributory Negligence
UNIT 5: NEGLIGENCE AND NOVEL DUTY SITUATIONS
5.1 Nervous Shock (Phychiatric Injury)
5.2 Economic Loss caused by Careless Statement (pure economic loss)
5.3 Economic Loss caused by Negligent Misstatement
5.4 Liability for Omissions
UNIT 6: OCCUPIERS’ LIABILITY
6.1 Definition of Occupier and Premises
6.2 Occupier’s Liability Act, Cap
6.3 Liability to Trespassers and Non-Visitors
6.3 Liability of Vendors and Lessors
UNIT 7: TRESPASS TO LAND
7.1 Definition of Trespass and Land
7.2 Actions Amounting to a Trespass: Airspace; Highway; Trespass ab initio
7.3 Defences: Consent; Lawful Authority; Necessity
7.4 Remedies: Damages; Injunctions; Re-entry; Action for the Recovery of Land
UNIT 8: NUISANCE
8.1 Statutory Nuisance
8.2 Public and Private Nuisance, and their Differences
8.3 Parties to an action: Who can Sue and Who can be Sued?
8.4 Defences: Prescription; Statutory Authority; Planning Permission
8.5 Remedies: Damages; Injunction; Abatement of the Nuisance
UNIT 9: STRICT LIABILITY: RULE IN RYLANDS v. FLETCHER
9.1 Definition of the Rule in Rylands v. Fletcher
9.2 Defences: Statutory Authority; Consent; Act of a Stranger; Act of God; Default of
the Claimant
UNIT 10: LIABILITY FOR ANIMALS
10.1 Common Law Liability Relating to Animals
10.2 Statutory Liability under the Act
10.3 Liability for Injury to Livestock caused by Dogs
UNIT 11: TORTS RELATING TO GOODS
11.1 Liability for Defective Products
11.2 Interference with Goods: Trespass to Goods; Conversion; Defences to Trespass
and Conversion; Remedies
UNIT 12: DEFAMATION
12.1 Definition of Defamation
12.2 Distinction between Libel and Slander
12.3 Defences: Justification; Fair Comment; Absolute Privilege; Qualified Privilege;
Innocent Publication; Consent; Offer of Amends
12.4 Remedies: Injunction; Damages
12.5 Malicious Prosecution and Malicious Abuse of Process
UNIT 13: THE ECONOMIC TORTS
13.1 Deceit
13.2 Malicious Falsehood
13.3 Passing Off
13.4 Interference with Trade: Conspiracy, Intimidation, Inducing a Breach of Contract
UNIT 14: VICARIOUS LIABILITY
14.1 Basis and Reasons for Vicarious Liability
14.2 Master and Servant; Liability for Agents; Employer and Independent Contractor /
Employees
14.3 The Control Test; The Integral Part of the Business Test; The Course of
Employment.
UNIT 15: DEATH IN RELATION TO TORT
15.1 Death as Extinguishing Liability
15.2 Death as Creating Liability
15.3 Relationship of the Fatal Accidents Act and the Law Reform (Miscellaneous
Provisions) Act.
UNIT 16: REMEDIES AND DEFENCES
16.1 Remedies: Damages (nominal damages, compensatory damages, contemptuous
damages, aggravated damages, punitive or exemplary damages); Injunction;
Other remedies.
16.2 Defences: voluntary assumption of risk (volenti non fit injuria); contributory
Negligence; illegality (ex turpi causa non oritur action); inevitable Accident; act of
God; necessity; mistake; exclusion clauses and consent.
PRESCRIBED READING / RECOMMENDED TEXT BOOKS
Chris Turner and Sue Hodge, Unlocking Torts,
E. W. Rogers(1994), Winfield and Jolowicz on Tort, 14th Ed. London: Sweet and Maxwell
Limited.
Vivienne Harpwood, Principles of Tort Law, 4th Edition, 2002, London
RECOMMENDED BOOKS
Clerk and Lindsell(1989), Torts, 16th Ed. London: Sweet and Maxwell Limited.
UNIT 1: INTRODUCTION TO THE LAW OF TORTS
THE NATURE OF A TORT
A tort is committed against an individual (which includes artificial persons) as opposed to the
State. This is because all persons have protected rights at law and abuse or violation of such
rights may occasion the claim of damages, injunctions etc.
The standard tort consists of the following elements:
Act or omission by the Defendant;
Damage occasioned to a claimant as a consequence of the act or omission ; and
This can be represented by the widely accepted model:
act (or omission) + causation +protected interest + damage = liability
The main purpose of the law of tort law is compensating the victims of wrongdoing for the
injuries they suffer as a result.
Functions and meaning of the Law of Torts
Functions of the Law of Torts
It is not possible to assign any one aim to the law of torts, which is not surprising when one
considers that the subject comprehends situations as disparate as ‘A’ carelessly running down
‘B’ in the street; or ‘C’ calling ‘D’ a thief, or ‘E’ giving bad advice to ‘F’.
The law of torts has primarily four functions –
1). It provides remedies for wrongs;
2). It provides compensation for the wrongs
3). It acts as a deterrent and provides protection; and,
4). Tort law is concerned with corrective justice and distributive justice.
In general therefore, the law of torts exists for the purpose of preventing men from hurting one
another, whether in respect of their property, their persons, their reputations or anything else
which is theirs.
The fundamental principle of this branch of the law is ‘alterum non laedere’ – to hurt nobody by
word or deed.
An action of tort is therefore a claim for pecuniary compensation in respect of damage suffered
as the result of the invasion of a legally protected interest. An interest is a claim or demand or
want or desire put forward by man in a civilized society.
The task of courts is first, to decide which interests should receive legal protection, and secondly,
to hold the balance between interests which have received protection. It is obvious that not all
objects of human desire can or should receive legal protection.
Tort Defined
A tort is a civil wrong for which the remedy is a common law action for unliquidated
(unspecified/unquantified) damages and which is not exclusively the breach of a contact or the
breach of a trust or other equitable obligation (See pages 14-15 of SALMOND AND HEUSTON
ON THE LAW OF TORTS, 26TH EDITION)
Tortuous Liability Defined
Tortuous liability arises from the breach of duty primarily fixed by law; this duty is towards
persons generally and its breach is redressible by an action for unliquidated damages
The person who sustains injury or suffers pecuniary damage as the result of tortuous conduct is
known as the plaintiff, and the person who is responsible for inflicting the injury and incurs
liability for the damage is known as the defendant or tortfeasor.
Graphically, tortuous liability is constituted as follows:
Duty of care (owed to persons with whom there is no contractual liability) + negligence
performance of that duty.
E.g. if a person fails to maintain his property and part of his property falls off and injures
another person, the property owner is liable for the damages to that person, even though it
may be a passerby with whom there are no contractual obligations”.
Law of tort Distinguished from criminal law and law of contract
Tort versus Criminal Law
A tort is a civil wrong. Proceedings in a tort are therefore civil, that is to say, the
purpose is to enforce some right claimed by the plaintiff as against the defendant.
Criminal proceedings on the hand aim at achieving the objective of punishing the
Accused for some act of which s/he is accused.
It is often the case that the same wrong is civil and criminal – capable of being made the
subject of proceedings of both kinds e.g. assault, libel, theft and malicious damage to
property. Speaking generally, in all such cases, the civil and criminal remedies are not
alternative but concurrently, each being independent of the other. The wrong doer may be
punished criminally by imprisonment or otherwise and also compelled in a civil action to
make compensation or restitution to the injured person e.g. a negligent driver who hits
into a person, can be prosecuted for a criminal offence of careless driving and be sued in
a civil matter (tort of negligence) for damages by a person whom he hit into.
Tort versus Law of Contract
The distinction between tort and contract is that the duties in tort are primarily fixed by
law, while in the latter they are fixed by the parties themselves. Referring to a tort for
example, a person would say as follows: I am under a duty not to assault you, not to
slander you, not to trespass on your land, because the law says I am such under such a
duty and not because I have agreed to undertake such a duty.
In tort, the duty is towards persons generally whereas in contract it is towards a specific
person or persons.
The core of contract is the idea of enforcing promises whereas tort aims principally at the
prevention or compensation of harms.
GENERAL CONDITIONS OF LIABILITY IN TORT
Faulty and Non-Faulty Liability
What is a fault based tort?
This question is largely concerned with the mental element of tort.
“It may not be sufficient for the claimant to demonstrate that the defendant’s act or omission
caused them damage in order to succeed in an action……it may also be necessary for the
claimant to show a particular state of mind on the part of the defendant. Where such a state of
mind needs to be proved, it is said to be a fault-based tort……..where no such state of mind
needs to be proved it is said to be a strict liability tort……”
With time, fault based tort has shifted from being a state of mind to being a judicially set
standard of conduct which is objectively set. The law finds ‘fault’ in a failure to live up to an
ideal standard of conduct (negligence). Therefore, ‘fault’ is today not an essential element in
tortuous liability.
The position of Intention, Malice and Motive in Tort
Intention in tort is generally irrelevant. A practical joker will be held liable in the tort of
negligence if he frightens another by a joke causing nervous shock to that person
See WILKISON V. DOWNTON (1897) 2QB 57
Facts:
‘A’ by way of a practical joke, falsely told the plaintiff, a married woman, that her husband had
met with an accident whereby both his legs were broken. She believed this and so violently upset
by the consequent nervous shock that she had a serious illness. ‘A’ was held liable.
In tort, the term ‘malice’ has two meanings as follows:
The intentional doing of some wrongful act without proper excuse; and
To act with some collateral or improper motive
With respect to the latter the general principle is that malice is irrelevant in the law of tort
(Exceptions: torts of malicious prosecution and nuisance).
If one has a right to do something then his motive in doing it is irrelevant. The law in general
asks merely what the defendant has done, not why he did it. A good motive is no justification for
an act otherwise illegal (exceptions: defences of necessity, private defence for they depend to a
certain extent on a good motive on the part of the defendant), and a bad motive does not make an
act otherwise legal. The leading case here is
BRADFORD CORPORATION V. PICKLES [1895] AC 587.
Brief facts:
The defendant intentionally sank a shaft in his land, thereby spoiling the supply of underground
water. His sole motive in doing so was to coerce the plaintiffs to buy this land at his own price.
The court held that the fact that the defendant had a bad motive did not make an otherwise lawful
action unlawful.
There are two exceptions to the general principle that malice is irrelevant in tort i.e. torts where
malice is a significant ingredient. These are torts of malicious prosecution and nuisance. The
case in point is that of
CHRISTIE V. DAVEY [1893]1 CH316
Brief facts:
The Plaintiff and defendant lived in adjourning houses. The plaintiff gave music lessons and this
annoyed the defendant. In retaliation the defendant banged on the wall and shouted while the
lessons were in progress. The plaintiff was held to be entitled to an injunction because of the
defendant’s malicious behavior”
Damnum Sine Injuria
There are many forms of harm which the law takes no account. Damage so done and suffered is
called ‘damnum sine injuria’. For example, the harm done may be caused by some person who is
merely exercising his own rights; as in the case of loss inflicted on individual traders by
competition, or when the damage is done by a man acting under necessity to prevent a greater
evil, or in the exercise of statutory authority. Or the courts may hold, on balancing the respective
interests of the parties that sound policy requires that the interest of the defendant should prevail
over those of the plaintiff e.g. BRADFORD CORPORATION V. PICKLES (1895) A.C. 587
where the court was of the view that the natural to support of a land owner is subordinate to the
natural right of his neighbour to exploit his property by the extraction of underground water not
percolating through undefined channels, whether the defendant had acted intentionally or
carelessly.
Other examples may be found in the law relating to damage caused by defamatory statements
made on a privileged occasion.
Injuria Sine Damno
Just as there are cases in which damage is not actionable as a tort (‘damnum sine injuria’), so
conversely there are cases in which behavior is actionable as a tort, although it has been the
cause of no damage at all (‘injuria sine damno’). Torts are of two kinds – namely, those which
are actionable per se, and those which are actionable only on proof of actual damage resulting
from them. Thus the act of trespassing upon another’s land is actionable even though it has done
the plaintiff not the slightest harm.
Joint and Several Tortfeasors
Where two or more people by their independent breaches of duty to the plaintiff cause him to
suffer distinct injuries each one of them is liable for his damage. However, if two or more
breaches of duty by different persons cause the plaintiff to suffer a single injury, the plaintiff can
sue all or any one of them for his full loss. Thus the proceedings shall be dealt with as a joint
liability or several (separate) liability. In ROOKE V. BOOL (1928) 2QB. 578, each of the two
men searching for a gas leak applied naked light to a gas pipe in turn and one of them causing an
explosion. They were held to be joint tortfeasors.
Persons are joint tortfeasors when they are responsible for one tort and they must have conceited
their efforts in the commission of that particular tort. Examples of joint tortfeasors are crooks
beating one person, joint occupiers, vicarious liability (master and servant) or a principal
allowing his agent to commit a tort. Here, the following principles apply:
I. One tortfeasor has a right of contribution from any other tortfeasor who is or would if
sued have been, liable in respect of the same damage;
II. The Court awards whatever contribution is just and equitable, having regard to the extent
of the joint tortfeasor’s responsibility for the damage; this in the court’s discretion
amount to complete indemnity.
See:
BROOKE V. BOOL (1928) 2QB. 578 above.
LISTER V. ROMFORD ICE AND COLD STORAGE CO. [1957] A.C.555 H.L
UNIT 2: TRESPASS TO THE PERSON
2.1 ASSAULT AND BATTERY
Any direct intentional interference with the person of another is actionable in the absence of
lawful justification. It is now settled that if the interference is unintentional the injured party’s
only cause of action lies in negligence.
Trespass to person is actionable per se, i.e., without proof of special damage. The tort seeks to
protect personal integrity, which is regarded as being fundamental that it is protected even in the
absence of damage.
The tort of trespass to persons is a fault- based tort-it is therefore not actionable in the absence of
INTENTION.
See the case of FOWLER V. LANRING [1959] 1 Q.B. 426
Assault
Assault is an act of a defendant which causes the plaintiff to reasonably apprehend (fear) the
infliction of an immediate battery on him or her by the defendant. Fear or apprehension must be
proved. Examples of an assault is throwing water at a person which does not touch his body;
pointing a finger in anger to somebody or an act of the defendant which causes fear in the
plaintiff. In doing so, the defendant should not have physical contact with the plaintiff lest there
be committed a battery. Pointing a gun at a person in a threatening manner, even though to the
knowledge of the defendant, but not to the plaintiff, it is unloaded. If there is no reasonable fear
there is no assault: as for example, when a gun is pointed at a man behind his back.
The fear by the plaintiff must be immediate and the plaintiff must have reasonable belief that the
defendant has present ability to affect his purpose. It is not an assault for example where ‘A’ who
is in a train that is moving out of a station, shakes his fist at ‘B’ who is on the platform nor to
shake a fist at a man who by his distance from the scene of action is inaccessible to such
violence. Also, words may negative what would otherwise have been an assault. See the case of
TURBERVILLE V. SAVAGE [1669] 1 Mod Rep 3
Battery
Battery is the direct and intentional application of force to another without lawful justification.
This is so, however trivial the amount or nature of the force may be, and even though it does nor
is intended nor is likely or able to do any manner of harm. Force means any physical contact
with the body of the plaintiff. There is a battery when the defendant shoots the plaintiff from a
distance just as much as he strikes him with his fist, and probably the infliction of such things as
heat or light, if in such a degree as to cause injury or discomfort, will also suffice. Physical hurt
is not necessary. It is sufficient if the act is done with hostile intent.
The least touching of another in anger or without his consent or some other lawful reason or
spitting in a man’s face, an unwanted kiss, taking finger prints of a person without observing
statutory requirements, to pull a chair from under a person where s/he fall to the ground, to
forcibly take from a person some object which he holds or wears is battery. In PURSELL V.
HORNE 91838) 3N AND P 564, it was held that to throw water at a person is an assault but if
any drops fall upon him, it is battery.
In COLE V. TURNER, 6 Mod. 149, Holt C.J. declared that:
The least touching of another in anger is a battery.
If two or more meet in a narrow passage, and without any violence or design of
harm, the one touches the other gently, it will be no battery.
If any of them use violence against the other, in a rude inordinate manner, it is
battery; or any struggle about the passage, to that degree as may do hurt, is battery
The act by the defendant must be voluntary.
Threats of personal violence which are purely oral and do not lead to injury are not actionable.
It is certainly clear that consent is implied to such physical contacts as are a reasonably necessary
consequence of social life, e.g. touching another on the shoulder to attract his attention and in
crowded conditions there is a judicial tendency to widen this exception.
Fear in the sense of alarm is not an essential ingredient in the tort of battery: a blow from behind
is a battery.
The appropriate tort for personal injuries resulting from medical treatment is not battery but
negligence.
Assault and battery are crimes as well as torts.
Defences to assault and battery
Lawful arrest. Where the defendant is carrying out a lawful arrest no tort is committed. The
precise procedure must be carried out in order to make an arrest. The arrested person must be
told the true grounds on which they are being arrested- exceptions are in the event where the
person to be arrested is resisting.
Consent- some examples include boxing, sporting events, medical operations.
Self- Defence- Self-defence is a defence where reasonable force is used in defence of the
claimant's person, property or another person. What amounts to self defence will be a
question of fact in each case but the basic principle is that the force used must be reasonable
in proportion to the attack.
Contributory negligence
Prevention of trespass or ejection of a trespasser. It is lawful for any occupier of land, or
for any other person with the authority of the occupier, to use a reasonable degree of force in
order to prevent a trespasser from entering or his movements or to eject him after entry.
Defendant acting in support of the law. Sometimes an assault or imprisonment may be
justified on the ground that the defendant was acting in support of the law. The onus of
proving legal justification lies on the defendant.
Parental and other authority. A parent is not guilty of an assault if he physically interferes
with his or her child by way of reasonable restraint or chastisement, or therapeutic reasons.
Inevitable accident. Inevitable accident provides a good excuse for a prima facie trespass
which is otherwise actionable. An inevitable accident has been defined as an event over
which the defendant had no control, and the effects of which would not have been avoided by
the exercise of the greatest care and skill.
FALSE IMPRISONMENT
False (erroneous or wrong) imprisonment consist in the act of arresting or imprisoning any
person without lawful justification, or otherwise preventing him from exercising his right of
leaving the place in which he is (SALMOND AND HEUSTON ON THE LAW OF TORTS,
TWENTIETH EDITION, page128). It may also be committed by continuing a lawful
imprisonment longer than is justifiable. The essence of the tort is the imprisonment of someone
who is otherwise free and not a convicted prisoner who is serving jail sentence. There is no need
to prove actual damage or bad faith.
Imprisonment in this tort does not necessarily mean actual imprisonment in the ordinary sense of
incarceration. It is enough that the plaintiff has been in any manner completely deprived of his
personal liberty, for any time however short. An unlawful arrest amounts to false imprisonment
and so does any act whereby a man is unlawfully prevented from leaving the place in which he
is. The mere fact of compelling a person not to move from a particular place and threatening
them with a gun is false imprisonment and can also be an assault.
Elements that constitute false imprisonment
The restraint must be complete i.e. there must be on every side of him a boundary
drawn beyond which he cannot pass. In BIRD V. JONES [1845] 7 QB 742, part of a
bridge called Hammersmith was wrongfully fenced off to provide seats to watch a boat
race. The Plaintiff forced his way into the enclosure, but was prevented from going on
further. As he was in no way prevented from returning, there was no imprisonment”. A
partial restraint is not false imprisonment;
Knowledge of detention is not necessary. It is not essential that the plaintiff should be
aware of the fact of his imprisonment, provided it is a fact. In GRAINGER v. HILL it
was held that imprisonment is possible even if the claimant is too ill to move in the
absence of any restraint. In MERRING V. GRAHAME-WHITE AVIATION C. [1919]
122 L.T. 44, it was held that a person detained on aerodrome premises in order to be
interrogated was held to be falsely imprisoned although he was not aware that he was not
at liberty to leave. Atkin L.J., said, “ it appears to me that a person can be imprisoned
while he is asleep, while he is in state of drunkenness, while he is unconscious and while
he is a lunatic. Of course the damages will be nominal.
The ground for this opinion is that although a person might not know he was imprisoned,
his captors might be boasting elsewhere that he was; and,
The restraint must be unlawful.
Means of escape. If a person has the means of escape, but does not know it, his detention
is nevertheless false unless any reasonable man would have realized that he had an
available outlet. Thus if I pretend to turn the key of the door of a room in which you are
and take away the key, it would be unreasonable if you made no attempt to see whether
the door was in fact locked.
Defences
Lawful arrest. Where the defendant is carrying out a lawful arrest no tort is committed. The
precise procedure must be carried out in order to make an arrest. The arrested person must be
told the true grounds on which they are being arrested- exceptions are in the event where the
person to be arrested is resisting.
Prevention of trespass or ejection of a trespasser. It is lawful for any occupier of land, or
for any other person with the authority of the occupier, to use a reasonable degree of force in
order to prevent a trespasser from entering or his movements or to eject him after entry.
Defendant acting in support of the law. Sometimes an assault or imprisonment may be
justified on the ground that the defendant was acting in support of the law. The onus of
proving legal justification lies on the defendant.
Parental and other authority. A parent is not guilty of an assault if he physically interferes
with his or her child by way of reasonable restraint or chastisement, or therapeutic reasons.
Inevitable accident. Inevitable accident provides a good excuse for a prima facie trespass
which is otherwise actionable. An inevitable accident has been defined as an event over
which the defendant had no control, and the effects of which would not have been avoided by
the exercise of the greatest care and skill.
Volenti non fit injuria is a defence as where a prison visitor agrees to be locked in a cell
with the prisoner.
UNIT 3: NEGLIGENCE
INTRODUCTION
In the law of torts, negligence has two meanings: (1) an independent tort which we shall deal
with in this unit; and, (2) the mode of committing certain other torts e.g. nuisance, Rylands and
Fletcher, occupier’s liability, nervous shock, economic loss, breach of statutory duty, etc. the
usual or common ways in which negligence is committed is through inadvertence, carelessness,
lack of foresight and casual conduct.
Negligence is defined as:
Breach of a legal duty to take care which results in damage to the plaintiff that is
undesired by the defendant (See: Winfield and Jolowicz on Tort).
The omission to do something which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do (Per Alderson B in Blyth v.
Birmingham Water Works Co. (18560 11 Ex. 751 at 784
Negligence is conduct, not a state of mind – conduct which involves an unreasonably great risk
of causing damage. A negligent doer is he who does not sufficiently desire to avoid doing harm.
To succeed in an action for negligence the Plaintiff must prove:
(a) That the defendant was under a duty of care to him;
(b) That there has been a breach of that duty.
(c) That as a result the Plaintiff has suffered damage
The Duty of Care
There is no liability for negligence unless there is in the particular case a legal duty to take care,
and this duty must be one which is owed to the plaintiff himself and not to others. Duty to take
care is the responsibility that a person must exercise in order not to cause harm to the other.
The most elaborate definition of the concept of ‘duty of care’ and the ‘test for determining
the existence of the duty of care’ is aptly formulated by Lord Atkin in the celebrated case of
DONOGHUE V. STEVENSON (1932) A.C. 562, H.L. in effect , this case summarizes what the
law of tort is all about.
Facts:
The Appellant, a Shop Assistant, sought to recover from the Respondent, a water manufacturer,
on the ground of his alleged negligence, for the injurious effects alleged to have been produced
her by the presence of a snail in a bottle of ginger manufactured by the respondent and ordered
for her in a shop by a friend of the Appellant. In consequence of her having part of the
contaminated contents of the bottle, the Appellant alleged that she contracted a serious illness.
The bottle was opaque.
Lord Atkin held as follows: “the rule that you are to love your neighbour becomes in law, you
must not injure your neighbour…you must then take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbor-my neighbour are
persons who are so closely and directly affected by my act that I ought reasonably to have them
in contemplation as being so affected when I am directing my mind to the acts or omissions
which are called in question”.
The manufacturers were liable to her in the tort for negligence.
Examples of duty of care:
Persons using the highway owe the duty of care to others;
Carriers of passengers and cargo owe a duty of care to passengers and cargo owners,
respectively.
Trespassers and thieves are not owed a duty of care.
Concepts used to determine the existence of a Duty of Care
1. Foreseability
The defendant must have foreseen or was likely to have foreseen the likely result of his conduct.
In the case of BOURHILL V. YOUNG [1943] A.C. 92 H.L. a pregnant fishwife who had just
gotten off a tram heard an accident, afterwards saw blood on the road. She suffered shock and
sued the personal representatives of the motor-cyclist whose negligence caused the accident and
who had been killed. Held: no reasonable person would have foreseen the injury; she was outside
the ambit of duty and could therefore not recover.
In PALSGRAFT V. LONG ISLAND R.R. (1928) NY 339, two servants of the Defendants,
while helping a passenger to board a train, negligently dislodged a parcel carried by the
passenger: the parcel fell and its contents (assumed to be fireworks) exploded. The shock of the
explosion knocked over some scales many feet away, which struck the plaintiff, injuring her. It
was held that the plaintiff could not recover damages: “the conduct of the defendants’ guard, if a
wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff
standing far away….Nothing in the situation gave notice (thus unforeseeable) that the falling
package had in it the potency of peril to persons thus removed…”
2. Reliance
One, who had relied to his detriment upon a statement made to him by another, could recover in
negligence. In HEDLEY BYRNE & COMPANY v. HELLER AND PARTNERS LTD. (1964)
A.C. 465), favorable references about E. Limited’s were given by E. Limited’s bankers to the
Plaintiffs. The references were given “without responsibility”. In reliance on the references the
Plaintiffs incurred expenditure on E. Limited’s behalf. E Limited went into liquidation and the
Plaintiffs sued the Bankers to recover their loss. It was held that a duty of care did exist, but the
bankers were not liable as they had expressly disclaimed responsibility.
The House of Lords ruled in this case that where there is sufficient ‘special relationship’ between
the maker of the statement and the person who is to rely on it, the former owes the latter a duty
of reasonable care in making that statement. A ‘special relationship’ exists when a person is “so
placed that others would reasonably rely upon his judgment or skill or upon his ability to make
careful inquiry
The concept of ‘reliance’ has significance in cases in which the parties are very close to a
contractual situation. It has no place in ordinary actions for personal injuries.
3. Proximity
The concept of ‘proximity’ is a description of circumstances from which, pragmatically, the
courts conclude that a duty of care exists. The concept does not necessarily require that the
identity of the plaintiff should be known at the time of the negligent act. Therefore, on the one
hand, geographical proximity between the parties, though an important factor is not sufficient of
itself to establish liability: e.g. a shopkeeper finds that a shop has been erected next door to him,
the second shopkeeper selling the same class of goods at half the price charged by the first. The
second man intends to inquire the first, but the latter has no cause of action, though the two are
physically neighbours. On the other hand, the absence of time or space will not prevent the
establishment of liability: a manufacturer of poisonous tinned food is liable although his product
has been shipped to the other side of the world and consumed months later.
4. ‘Just and Reasonable’
Lord Keith in PEABODY DONATION FUND v. PARKINSON (1895) A.C. 210, 240 said that
in determining the existence of a duty of care it was ‘material to take into account whether it is
‘just and reasonable’ that one should be imposed. This concept has been used mainly to deny
liability in circumstances in which another defendant, or the plaintiff himself, is regarded as the
more appropriate bearer of the relevant loss or where alternative remedies exist with which a
negligence action could undesirably be in conflict or where the circumstance is an exception to
the ‘neighbour principle’ enunciated in the case of DONOUGHE v. STEPHENSON e.g. the
absence of any duty to prevent the subsidence of one’s neighbour’s premises by the abstraction
of underground water in undefined channels.
5. Policy
Lord Keith has said that where ‘negligence is made out on the proximity basis’ it would only be
in ‘rare cases’ that public policy would require that there should be no liability. Nevertheless in
such cases public policy is still capable of constituting a separate and independent ground for
holding that the existence of liability in negligence should not be entertained. Thus in HILL v.
CHIEF CONSTABLE OF WEST YORKSHIRE (1989) A.C. 53 it was held that it would be
contrary to public policy for negligence in the detection of crime to give rise to liability against
the police. Another example is the immunity of barrister from liability for negligence in the
conduct of proceedings in court.
Breach of Duty: Standard of Care and the ‘Reasonable Man’ Test
The duty to care is breached when the defendant fails to meet the required standard of recognized
behavior in human endeavour. The standard of duty to take care is that of an ordinary prudent
(reasonable) man.
In Goldman v. Hargrave (1967) 1AC 645, during a storm, a tall redgum tree on the Defendant’s
property was struck by lightning. The tree caught fire and the Defendant called in a tree feller to
cut it down. Instead of extinguishing the fire by using water on it, as a reasonable man would do,
the defendant allowed the fire to ‘burn itself out’. The fire revived with an increase in the wind
and spread to plaintiff’s property causing extensive damage. The Privy Council held that
The existence of a duty of care must be based on the knowledge of the hazard, the ability to
foresee the consequences or not checking or removing it and the ability to abet it.
The degree of care to be exercised will depend upon the circumstances of each case. A person
handling children is expected to exhibit a higher standard of care as opposed to that handling
people of mature. So is a person handling blind people as opposed to one handling sighted
people?
In assessing the standard of care, courts will also take the following into account:
The likelihood of harm occurring see the case of Bolton V. Stone [1951] A.C. 850; the
plaintiff was injured by a cricket ball hit over the fence onto the road. It was held that the
cricket club was not liable as the possibility of injury was so slight.
The seriousness of the consequences if care is not taken. In PARIS V.STEPNEY
BOROUGHCOUNCIL [1951] A.C. 367. A workman who had (as his employers knew)
only one good eye lost the sight of that eye from a splinter of metal. No goggles had been
supplied to the workman. It was held that the employer should have been exercised
greater care in his case than in that of a two eyed man.
If a person has set himself up as having a particular skill he must exhibit as much skill as
is usually found in such person;
The negligence of a Child is judged by the standard of care normally exhibited by a child
of that age.
Damage Occasioned by Breach of the Duty of Care
Harm occasioned by breach of duty of care owed to the plaintiff by the defendants is called
damage. It is the injurious effect of the defendant’s act on the plaintiff. It may be in form of
bodily harm (including nervous shock) or loss of profit.
PROVING NEGLIGENCE: RES IPSA LOQUITUR
The burden of proving negligence is on the plaintiff who alleges it. It is not for the doer to excuse
himself by proving that the accident was inevitable and due to no negligence on his part.
Res Ipsa Loquitur
It is not a nominate and neither is it a defence in negligence. It is a rule of evidence. It means the
thing speaks for itself.” Ordinarily, the burden of proving negligence is on the party alleging it.
However, the onus is on the defendant where an accident tells its own story.
The Elements of Res Ipsa Loquitur
The accident must be such as could not in the ordinary course of things have
happened without negligence.
This means that a plaintiff in an action for negligence is only required to prove the
occurrence of the accident in which s/he suffered damage without having to prove
negligence itself.
The thing that caused injury to him/her was under the control of the Defendant .
Having done so, the defendant then bears the evidential burden to rebut the allegation of
the plaintiff. The court applies a rule that in such cases the cause of the injury to the
plaintiff is solely within the knowledge of the defendant. The presumption is that there
was negligence on the part of the defendant. Sir William Erle C.J., in SCOTT V.
LONDON AND ST. KATHERINE DOCKS CO (1865 3H&C 596, 601 where six bags
of sugar from a warehouse fell onto a passer-by stated that “but where the thing is to be
under the management of the defendant or his servants, and the accident is such as in the
ordinary course of things does not happen if those who have the management use proper
care, it affords reasonable evidence, in the absence of explanation by the defendant, that
the accident arose form want of care”.
More illustrations:
In BYRNE V. BOADLE (1863] 2 H & C 722, as the Plaintiff walked past the
defendant’s shop, a barrel of flour fell from a window above the shop and injured him. It
was held that the occurrence was of itself evidence of negligence itself even in the
absence of an explanation by the defendant.
In GEE V. METROPOLITAN RAIL WAY (1873) L.R. 8QB 161, the Plaintiff leaned
against the door of a train shortly after it left the station. The door opened and the
plaintiff fell out. It was held that as the door had recently been under the control of the
defendants, there was negligence.
Contrast this case with that of EASON V. L.N.E.R (1944) KB 421 in which the Plaintiff,
a four year old child, fell out of the door of a moving train. At the time of the accident,
the train was 7 miles from its last stopping place. It was held that res ipsa loquitor wasn’t
applicable in these circumstances. The defendant did not have sufficient control over the
door at the time. Any passenger on the train could have interfered with the door.
Stones being found in a bun, slippery matter to be left lying on the floor of a shop
There must be no explanation for the negligence
The facts do not “speak for themselves” where there is an explanation;
See the case of BARKWAY V. SOUTH WALES TRANSPORT CO. LTD. [1950] 1 ALL
E.R. 392 H.L. In this case, there was a great deal more known than that a vehicle mounted a
pavement and went over an embankment. For instance, a tyre was defective and there was
evidence as to speed. It was held that res ipsa loquitur did not apply and the known facts must be
examined to see whether negligence should be inferred.
UNIT 4: CAUSATION AND REMOTENESS OF DAMAGE
RELATIONSHIP BETWEEN CAUSATION AND REMOTENESS OF DAMAGE
In Introduction
Lord Denning in LAMB V. LBC AND OTHERS v. SPARTAN LIMITED (1981) 2 ALLER 408
stated that “ the truth is that all these three; duty, remoteness and causation, are all devices by
which the courts limit the range of liability for negligence or nuisance…it is not every
consequence of a wrongful act which is the subject of compensation. The law has to draw a line
somewhere…sometimes it is done by limiting the range of the persons to whom duty is owed.
Sometimes it is done by saying that there is a break in the chain of causation. At the other time, it
is done by saying that the consequence is too remote to be a head of damage.
What is Causation?
Causation in this breath refers to the actions of the defendant which led to a breach of duty and
that the damage was not too remote. The plaintiff must establish an unbroken connection
between his damage and the defendant’s wrongful conduct. Lord Denning in ROE v. MINISTER
(1954) 2 ALLER 131 9CA) stated that “starting with the proposition that a negligent person shall
be liable, within reason, for the consequences of his conduct, the extent of his liability is to be
found by asking the question: is the consequence fairly to be regarded within the risk created
by the negligence? If so the negligent person is liable for it but otherwise, not.
What must be borne in mind is that in each case, it is whether the defendant has contributed to
the damage; his tort need not be the only cause of the injury.
The term causation can be looked at in twofold:
“causation in fact” and “causation in law”
Causation in fact considers the question of whether as a matter of fact the damage was caused by
the breach of duty – ‘is the defendant’s act the cause of the injury?’ Causation in law simply
means that the law stipulates what causation actions qualify to cause damage – was the plaintiff
proximate enough to the defendant’s act?’The plaintiff must prove that the damage that occurred
to him was caused by the defendant who owed him a duty of care and that the damage was not
too remote to the wrongful act.
In BARNET v. CHELSEA (1969) 1Q.B. 428, the plaintiff’s husband went to a casualty
department of a hospital complaining that he had been vomiting. The doctor refused to examine
him and he was told to go home and consult his own doctor in the morning. The plaintiff’s
husband was in fact suffering from arsenical poisoning and he died some 5 hours later. The
plaintiff sued the hospital alleging that they had been negligent in the treatment given to her
husband and that as a result of their negligence her husband had died. It was held that the
defendants were not liable to the plaintiff as their negligence had not caused her husband’s death.
Even if the doctor had examined her husband and treated him her husband would still have died
from the poisoning and so the doctor’s negligence was not a cause of the husband’s death.
NOVUS ACTUS INTERVENIENS
An event which occurs after the breach of duty, and which contributes to the claimant’s
damage, may break the chain of causation, so as to render the defendant not liable for any
damage beyond this point. Where this occurs, the event is known as novus actus interveniens.
Furthermore, damage may be too remote if the chain of causation is interrupted by an extraneous
act. The intervening act may be that of the Plaintiff himself or the third party. Case of
HARNETT V. BOND (1925) A.C. 669 The Plaintiff, when a lunatic on probation, visited the
defendant, a Commissioner in Lunacy, who, mistakenly thinking him to be still mad, detained
him until he could be taken back to asylum. It was nine years before he regained his freedom,
and he sued the defendant for false imprisonment. He recovered damages for the short period in
Bond’s office but the reminder was too remote as a new act, the exercise of the asylum owner’s
discretion, had intervened”.
But unlawful acts do not necessarily break the chain of causation. In the case of PIGNEY V.
POINTERS TRANSPORT SERVICES LTD [1957] 1 W.L.R. 1122, P received head injuries in
an accident caused by the defendants’ negligence. Injuries caused NEUROSIS and P committed
suicide. It was held that P’s widow could recover damages under the Fatal Accidents Act as P’s
suicide was directly traced to his injury.
REMOTENESS OF DAMAGE
Remoteness of damage is the extent to which a Defendant is liable for the consequences of his
wrongful act or omission. The position of the law is that a Plaintiff is not entitled to
compensation if the damage suffered is in the eyes of the law is too remote.
The Test APPLIED by the courts is that consequences are too remote if a reasonable man
would not have foreseen them.
Case:
In OVERSEAS TANKSHIP (U.K) LTD V. MORTS DOCK & ENGINEERING CO.
LTD [1961] A.C. 388 (WAGON MOUND (No. 1)), the court sought to examine in detail
to what extent a defendant should be held liable for the damages, whether only those that
were reasonably foreseeable to happen due to the negligence of the defendant or also to
hold the defendant liable even for the damages that occurred consequent to the damage
from the foreseeable damage as the case was in Re POLEMIS (1921) 3KB 560.
In WAGON MOUND (No. 1), the Defendant carelessly discharged oil from a ship in
Sydney Harbour, and the oil floated on the surface of the water towards the plaintiff’s
wharf. The plaintiff’s servants, who were welding on the wharf, continued after being
advised (non-negligently) that it was safe to do so. Sparks from the welding equipment
first of all ignited cotton waste mixed up in the oil; then the oil itself caught fire. The
plaintiff sued for destruction of the wharf by fire.
The court found the defendant not liable in negligence because it was not reasonably
foreseeable; damage by fire as the case was, was not foreseeable. The Privy Council
further declared that as far as the tort of negligence was concerned, Re POLEMIS was
no longer good law and liability would lie only for foreseeable damage of the kind or
type in fact suffered by the plaintiff.
In the earlier case of Re POLEMIS cited above, as a result of the negligence of
stevedores, who were servants of the defendants, a plank fell into a ship’s hold containing
petrol in metal containers. The impact of the plank as it hit the floor of the hold caused a
spark, and petrol vapour was ignited. The ship was destroyed. The arbitrators found that
the spark could not have been foreseen; though some damage was foreseeable from the
impact.
The Court of Appeal unanimously held that the defendant was liable since the plaintiff’s
loss (the consequences of the defendant’s servants’ negligence) was a direct though not
reasonably foreseeable, result.
This decision suggests that provided some damage is foreseeable, liability lies for the
natural and direct consequences flowing from the breach of duty.
The precise circumstances need not be foreseeable; but the defendant will be liable if the
consequences are within the general range which a reasonable man would foresee. The
case of BRADFORD V. ROBINSON RENTALS LTD [1967] 1 W.L.R.337 is authority.
The brief facts are that…B. was ordered by his employers to make a long journey in an
unheated van in a period of severe cold. He suffered frost bite as a result. It was held that
his employers were liable, even though frost-bite was an unusual condition, as some
injury from cold was foreseeable.
Note: Damage which is intended is never too remote, and there is an inference that a man
intends the natural and necessary consequences of his conduct.
Sensitive (Abnormal) Plaintiffs
The ‘egg-shell skull’ rule provides that the defendant must take his victim as he finds him. Once
a breach of duty has been established, the defendant must take his victim as he finds him. In
determining whether a duty exists, however, the law will not take account of abnormal
susceptibilities or infirmities in the person or property of the plaintiff which the defendant neither
knew nor could reasonably be taken to have foreseen. But if the defendant knows that the
plaintiff has some characteristic or incapacity which will increase the risk of harm, the court may
hold that the defendant owes a proportionately higher degree of care.
In SMITH v. LEECH BRIAN (1962) 2QB 405), the plaintiff was splashed and slightly burnt on
the lip by molten metal, due to the defendant’s negligence. Through the plaintiff’s predisposition
to cancer, the cancer became malignant and the plaintiff died. The defendant was found fully
liable, although a ‘normal’ person would not have suffered the cancer and death in those
circumstances.
Defences to Negligence
Novus Actus interveniens (see notes above)
Volenti non fit injuria
No injury is done to one who consents e.g. inoculation, fair blow in a boxing match, injury
arising in the course of a sport. No one can enforce a tort which he has voluntarily waived. In
WOOLDRIDGE v. SUMMER (1963) 2Q.B. 43, the Court of Appeal held that spectators at
games and sporting events assume the risk of any harm caused by the players unless it results
from intentional or reckless conduct.
What are some of the features that qualifies ‘Volenti non fit injuria’ –
the claimant must have acted voluntarily and had an opportunity to exercise a free choice;
The defense can be pleaded where the parties agree to waive the negligent act. However,
the agreement must not be made under duress, mistake and or fraud.
For the defense to succeed, the claimant must have the knowledge of the existence of the
risk and the nature of extent.
Contributory negligence
This is where the claimant's fault has contributed to their damage.
In cases where both parties allege negligence, the test is: whose act really caused the
wrong? If it is only one of the parties, he bears the whole loss;
But if both parties are at fault to a substantial extent, the total loss is shared between them
proportionately to their responsibility.
There is authority for the view that causation as well as blameworthiness must be taken
into account in accessing responsibility.
In the case of STAPLEY V. GYPSUM MINES LTD. [1953] A.C. 663. H.L. two
workmen A and B were ordered to bring down an unsafe roof and not to return to their
normal work until they had done so. They failed to bring down the roof and together
decided to return to work. The roof collapsed and A was killed. His widow sued the
employer as being responsible for B’s negligence. It was held that in view of A’s
contributory negligence, she could recover only 20 per cent!
For the defense to succeed,
The defendant must prove that the claimant failed to take reasonable care and as a
consequence, that failure caused damage;
The claimant's conduct must qualify to fall under the sphere of negligence. This is
considered objectively;
Furthermore, for the defense to qualify, the claimant's fault must be the legal and factual
cause of the harm suffered.
Ex-turpi Causa non-oritur action ( an action does not arise from a base cause)
It is a defence which provides that a plaintiff who suffers damage while participating in a
criminal activity cannot sue a fellow participant or the owner of the premises in negligence. E.g.
a woman cannot sue a health facility in negligence over botched illegal abortion. In RANGE v.
MID-DOWNS HEALTH AUTHORITY (1991) 1 ALLER 804, the allegation of negligence was
that the defendant had failed to observe a foetal abnormality during pregnancy and the plaintiff
had denied the possibility of an abortion. Such an action would have been illegal under the then
existing laws. It was held that there was no negligence on grounds of public policy. The court
would not award compensation where the plaintiff would have to have broken the law.
Remedies to the Tort of negligence
damages
Injunction. It is an order of the court of the court requiring the defendant to do something
or to refrain from doing something.
UNIT 5: NEGLIGENCE AND NOVEL DUTY SITUATIONS
NERVOUS SHOCK (PSYCHIATRIC INJURY OR DAMAGE)
What is Nervous Shock?
This is a branch of negligence where a plaintiff claims to have suffered psychiatric or mental
illness as a result of the act of the defendant. The view that that the law takes cognizance only of
physical injury resulting from actual impact has been discarded, and now, an action will lie for
injury by shock sustained through the medium of the eye or the ear without direct impact. The
plaintiff must show that he suffered harm over ordinary grief and distress. Actions in negligence
based on nervous shock are proven by medical evidence.
Damages can be awarded if the shock is caused by reasonable fear for one's own safety or the
safety of others. Cases:
In the case of DULIEU V. WHITE [1901] 2 K.B. 669 on the aspect of one’s own safety: the
Defendants were held liable when their servant negligently drove a pair-horse van into the front
of a public-house, with resultant shock and illness to the plaintiff, who was standing behind the
bar.
The case of HAMBROOK V. STOKES [1925] 1 K.B. 141 is authority for the recovery of
damages for nervous shock resulting from the fear of another person’s safety. In this case, the
defendant left a lorry unattended to at the top of a hill with the break off. The lorry ran down the
hill and eventually crashed. The plaintiff’s wife had just left her children around a bend in the
road. She saw the lorry and feared for the safety of her children. She was told that a girl with
glasses had been injured and thinking it was her daughter she suffered nervous shock leading to
her death. Damages were awarded, although she was not within the foreseeable area of impact
and the shock was as a result of fear for another’s safety.
Damages will also be recoverable in the event that it was reasonably foreseeable that a
normally susceptible person would suffer shock by witnessing the accident in question. In the
case of OWENS V. LIVERPOOL CORPORATION (1939) 2 K.B. 394, a negligently driven
tram collided with a hearse and overturned the coffin. Four mourners following in a carriage
suffered shock. The affected mourners recovered damages.
CHADWICK V. BRITISH RAIL BOARD (1967) 1 W.L.R. 912. In this case, the Plaintiff went
to assist in rescue activities after a serious train crash. As a result of his experiences he became
psychoneurotic. It was held that the injury was foreseeable and the board was liable.
The other instance is where the Defendant intended to shock the Plaintiff: the case of
WILKINSON V. DOWNTON (1897) 2 Q.B. 57.
ECONOMIC LOSS CAUSED BY CARELESS STATEMENT (PURE ECONOMIC LOSS)
The concept of economic pure loss examines the economic loss unaccompanied by physical
damage. This clearly presents a huddle in the tort of negligence as the prime consideration for
this tort is to compensate people for loss caused by negligently inflicted physical damage. Such
losses are only recoverable in negligence in exceptional cases and not as general rule. Such
losses are sufficiently protected by the law of contract law and such torts as deceit.
NEGLIGENT MISSTATEMENT
Although the landmark case of HEDLEY BYRNE & CO. LIMITED V. HELLER &
PARTNERS LIMITED (1964)] A.C. 465 (see facts above) widened the tort of negligence to
bring economic loss within its scope, the extent of liability for such loss remains limited. The
case is authority in matters relating to negligent misstatements. Here, the House of Lords ruled
that where there is sufficient “special relationship” between the maker of the statement and the
person who is to rely on it and there had not been a disclaimer of responsibility by the maker, the
maker of the statement owes the person relying on the statement a duty of reasonable care in
making that statement.
Apart from this duty to take care, an innocent misstatement may give rise to an action for
damages:
1. Where there is a contractual duty to use care;
2. Where there is a fiduciary relationship between the parties and the case of NOCTON V.
LORD ASHBURTON (1914) A.C. 932 cements the proposition. A solicitor who had
induced his client honestly but negligently to release part of a mortgage security was held
liable to indemnify him.
Liability for Omissions
1. Misfeasance; and
2. Nonfeasance
Misfeasance simply implies; harm caused by a positive act. Nonfeasance is omitting to act! The
bulk of our discussion reveals that negligence protected misfeasance.
Going back to the case of DONOGHUE V. STEVENSON, Lord Atkin referred to ‘acts or
omissions which you can reasonably foresee would be likely to injure your neighbor.
Perhaps the issue of omission liability- much as it may raise arguments of remoteness of damage
(at times) and breaking the chain of causation; claimants have succeeded to rope in third parties
who are not directly answerable to actions of negligence by the tortfeasor save for their omission.
The case in point is CARMARTHENSHIRE C.C. V. LEWIS (1955) A.C. 549. Where a child of
four strayed from school premises onto the highway; a lorry-driver swerved to avoid him and the
driver died. It was held that the school authorities were liable for their negligence in allowing the
child to stray.
Consider the case of CLAY V. A.J. CRUMP & SONS LIMITED (1964) 1 Q.B. 533
An Architect was engaged to supervise redevelopment of a site. A dangerous wall was left
standing, which collapsed and injured the Plaintiff. The Architect had said that the wall could
stay “if it was safe” but had never inspected it. It was held that the architect was liable, even
though he only omitted to act, as he should have foreseen the danger and inspected the wall.
UNIT 6: OCCUPIER’S LIABILTY
DEFINITION OF OCCUPIER AND PREMISES
Who is an Occupier?
An occupier is the person in control of the property. Liability is generally based on occupancy or
control not on ownership. The person responsible for the condition of the premises is he who is
in actual occupation or possession of them for the time being, whether he is the owner of them or
not. For it is he who has the immediate supervision and control and the power of permitting or
prohibiting the entry of other persons.
Note that occupation may be shared between two or more people as when an occupier
engages a head contractor to do repairs or when an employer remains in occupation through his
employee, or other licensee. In such a case each occupier owes, or may owe, a separate duty to
the visitor, who may be a trespasser in relation to one of the occupiers, but not in relation to the
other.
In the case of WHEAT V. LACON & CO. LIMITED (1966) A.C. 552, L. Co. employed R. as
licensee of one of their inns, and permitted him to take guests in the upper part. W, a paying
guest, fell down an unlit staircase and was killed. It was held that R. and L. Co. were occupiers,
but there was no breach of duty by L. Co.
It may also be that A invites B onto the premises of C in pursuance of some common material
interest, he must either take reasonable care to ensure that C’s premises are reasonably safe for
the purpose in view or else warn B that he has not done so.
Occupiers and Premises
At common law, a single duty of care is owned by the occupier to all his lawful visitors.
What are premises under the sphere of occupiers’ liability?
Real property and appliances or objects upon it of which the plaintiff has been invited
or allowed to make use e.g. land, buildings, grandstands, diving boards, electricity pylons
and scaffolds.
Movables such as ships, buses, railway carriages, lifts and aero planes in so far as the
injury complained of has arisen from the dangerous structural condition of the
conveyance.
Occupier’s Liability Act, Chapter 70 of the Laws of Zambia
This is an Act to amend the law as to the liability of occupiers and others for injury or damage
resulting to persons or goods lawfully on any land or other property from dangers due to the state
of the property or to things done or omitted to be done there; and to provide for matters
incidental to or connected therewith.
Liability to Trespassers and Non-Visitors
The Common Duty of Care
Section 3(1) of the Act provides that an occupier owes the same duty, the “common duty of care”
to all his visitors except in so far as he is free to and does, extend, restrict, modify or exclude his
duty to any visitor or victors by agreement or otherwise.
This duty of care is not owed to trespassers.
Under section 3(1) of the Act, the common duty of care is defined as a duty to take such care as
in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in
using the premises for the purposes for which he is invited or permitted by the occupier to be
there.
The common duty of care is also owed to persons visiting the premises under a contractual right
(section 4).
Area of Lawful Visit
The common duty of care is owed only to a visitor who is “using the premises for the purposes
for which he is invited or permitted by the occupier to be there”. If a visitor exceeds the area of
invitation or permission, he becomes a trespasser, and is owed a lesser duty. It is a question of
fact whether in all the circumstances of the case the occupier has taken reasonable steps to warn
his visitor of the existence and scope of the prohibited area.
According to section 3(4) (a), a warning of a danger cannot be relied on as absolving the
occupier from liability unless it is adequate in the circumstance. In the case of ROLES V.
NATHAN (1963) 1 W.L.R 1117- Two chimney sweeps were killed by gas while cleaning a
boiler. They had been repeatedly warned of the risk involved by the occupier and his expert. It
was held that the warnings were enough to make the sweepers reasonably safe.
In the case of ASHDOWN V. SAMUEL WILLIAMS & SON LIMITED [1957] 1. Q.B. 409,
C.A. Defendants, occupiers of railway sidings, posted notices that all persons using right of way
across lines did so at their own risk. A, was knocked down by trucks shunted negligently by the
Defendants. It was held that A could not recover; she was a licensee, but notices were sufficient
to absolve the defendant’s from liability for negligence.
Children
The Occupiers’ Liability Act , section 3 (3) (a) provides that in assessing the common duty of
care an occupier must be prepared for children to be less careful than adults. So a small child can
recover damages if he fells through a gap in some railings which would not have been dangerous
to an adult.
Discharge of Duty
The Act provides that the duty it imposes may be discharged, in an appropriate case, by taking
reasonable steps to warn of the danger or to discourage persons from incurring the risk.
Who is a Trespasser?
A trespasser is a person who enters another person’s premises without lawful authority to do so.
Traditionally, the view is that an occupier is not liable to a trespasser unless he acts willfully or
reckless. In the case of MOURTON V. POULTER [1930] 2 K.B. 183, the Defendant, who was
felling trees, warned trespassing children who were watching, but failed to repeat the warning
when a tree was about to fall. He was held liable.
A person would not be deemed to be a trespasser if permission for him to be on his land is
implied. Implied permission is a question of fact to be decided on the facts of the case. This
frequently occurs in situations where an occupier habitually and knowingly acquiesces in the
trespass. Such a person becomes a licensee and the occupier owes him a duty of care and
protection.
The burden of proving the implied permission rests on the person claiming it.
Persons who call on the occupier for purposes of business interest to him have an implied
permission to enter even though their entry may be distasteful to the occupier.
LIABILITY TO VENDORS AND LESSORS
Vendor
A vendor is a seller of merchandise and or land.
Liability remains with the vendor until at such a time that title passes to the Purchaser.
Lessor
A lessor is usually one who transfers to another the exclusive occupation of premises for a
definite period. If that other does not obtain exclusive possession, he is only a licensee.
Duty of Lessor
Apart from any express or implied contract to that effect, at common law a landlord owes no
duty of care in his capacity as such, either towards his tenant or towards any other person who
enters on the premises during the tenancy, to take care that the premises are safe either at the
commencement of the tenancy or during its continuance. Such responsibility shifts onto the
tenant.
In what circumstances would a lessor be liable?
Common places of building and or premises (they must be kept in repair. This could be
implied in la lease of a high-rise block of flats, for example);
If the let premises is a furnished house, it is implied that the furniture are at the
commencement of the tenancy fit for immediate occupation or use; and
If responsibility of preventing the risk in the premises is clearly apportioned to the Lessor
Defences to Occupiers’ Liability
Contributory negligence
Defendant was warned of danger
The visitor was aware about the risk
Even if the occupier has not exempted himself from liability by means of “agreement or
otherwise under section 3(1) of the Act, he may still be exonerated from liability in whole
or in part by reason of the visitor’s knowledge of the danger.
Exclusion clauses
UNIT 7: TRESSPASS TO LAND
What is Trespass?
Trespass is an unlawful inference with ones right to property
The tort of trespass to land (trespass quare clausum freigit) consists in the act of
1. Entering upon land in the possession of the plaintiff, or
2. Remaining upon such land, or
3. Placing or projecting any object upon it – in each case without lawful justification
Trespass to land, like all other forms of trespass, is actionable per se without any proof of
damage and independently of any intention to trespass (i.e. innocent straying or loss of way is no
defence). Every invasion of property be it ever so minute, is a trespass.
Entry upon the land is the most obvious instance but others are:
1. Throwing objects onto the land;
2. Driving nails into a wall;
3. Remaining after the determination of a license to enter; and
4. Using a right of entry for purposes other than that for which it was granted.
Trespass by Remaining on Land
Every person who has lawfully entered on land in the possession of another commits a trespass if
he remains there after his right of entry has ceased. To refuse to leave the plaintiff’s land or
vehicle is as much a trespass as to enter originally without a right. Thus any person who is
present by the leave and licence of the occupier may, as a general rule, when a licence has been
terminated, be sued or ejected as a trespasser, if after request and after the lapse of a reasonable
time he fails to leave the premises. A reasonable degree of force may be used to control the
movements of a trespasser or to eject him.
Continuing Trespass
The continuance of a trespass gives a fresh cause of action from day to day and the party whose
right is infringed may bring successive actions so long as it continues. Trespass by way of
personal entry is a continuing injury, lasting as long as the personal presence of the wrong doer
and giving actions de die in diem so long as it lasts. The same characteristic belongs in law even
to those trespasses which consist in placing things upon the plaintiff’s land. Such a trespass
continues until it has been abated by the removal of the thing which is thus trespassing;
successive actions will lie from day to day until it is so removed.
In the case of HOLMES V. WILSON (1839) 10 A & E 503, trustees of a turnpike road erected
supporting structures on the Plaintiff’s land. The Plaintiff sued but settled for a sum in full
satisfaction. Later, the Plaintiff called on the Defendants to remove the buttress and sued them
when they refused. It was held that the Defendants were liable for the continuing trespass.
Actions Amounting to a Trespass
Trespass on the High Way
The owner of land adjoining a highway is the owner of the soil up to the middle. Improper use of
the highway is actionable by him as a trespass. In the case of HICKMAN V. MAISEY (1900) 1
Q.B. 752. the defendant walked to and from on the highway spying on racehorse trials taking
place on The Plaintiff’s land. His actions were held to be tantamount to trespass.
Trespass by Placing Things on Land
It is a trespass to place anything upon the plaintiff’s land or to cause any physical object or
noxious substance to cross the boundary of the plaintiff’s land, or even simply to come into
physical contact with the land, though there may be no crossing of the boundary: for example, to
cause a creeper to grow upon it, or to lean a ladder, planks or a shed, or to pile rubbish against it.
Trespass Beneath and Above the Surface
In general he who owns or posses the surface of land owns or posses all the underlying strata
also. Any entry beneath the surface, therefore, at whatever depth, is an actionable trespass. It is
commonly said that the ownership and possession of land bring with them the ownership and
possession of the column of space above the surface ad infinitum. The landlord owns the land
from beneath the surface and above (‘cujus est solum, ejus est usque ad coelum et usque ad
inferos’ – ‘whose is the soil, his is also the heavens’).
Whilst entrance under the surface of another’s land is trespass, it is doubtful how far entry above
the land without actual contact is actionable. It would appear that whereas temporary intrusions
at a high level are not actionable, more permanent intrusions at a low level are not actionable.
In the case of KELSEN V. IMPERIAL TOBACCO CO. LIMITED (1957) 2 Q.B. 334, an
advertising sign projecting into airspace over single storey shop was held to be a trespass, not
mere nuisance.
No action for trespass or nuisance lies by reason only of the flight of aircraft over any property at
a height above the ground, which having regard to all the circumstances of the case is reasonable
or in respect of noise or vibration from the aircraft on certain aerodromes, provided there is no
breach of statutory regulations.
However, the owner is liable without proof of negligence or intention for any material damage
caused to persons or property in taking off, landing or flight (subject to maximum scale except in
cases of willful misconduct).
Statutory provisions play a major role in this regard and thus, an affected party has a right of
indemnity against the person who caused the damage in certain cases.
Trespass Ab Initio
A person who enters upon the land of another with the owner or occupier’s permission is not a
trespasser but a licensee. However, a licensee who lawfully enters the land of another but
subsequently commits a misfeasance whilst on the premises is a trespasser ab initio. In the case
of THE SIX CARPENTERS (1610) 8 Rep. 146 or 4 Cox Rep. 432, six carpenters went into an
inn in Cripplegate and, having consumed a meal of wine and bread, refused to pay for it. Their
right to enter was conferred by law, the place being an inn. It was held that they were not liable
because their act was nonfeasance, not a misfeasance. They complaint related to something they
had not done, i.e. they had not paid, and trespass ab initio (i.e. a trespass as if the original entry
had been wrongful) depends upon misfeasance.
An act of misfeasance by a person who has entered on land of another by authority of the law
revokes the authority, and that person becomes liable in trespass as if the original entry has been
wrongful. Examples would be theft by a hotel guest
Trespass to Goods/chattels
A trespass to goods/chattels is one who takes the goods or chattels of another and uses them
without the owner’s consent. This is tantamount to the offence of theft in criminal law. The tort
is committed by way of any wrongful interference with the goods in another’s possession. It is
actionable per se (i.e. actionable as a trespass, without proof of damage).
Actual physical contact is necessary; e.g. wrongfully driving cattle away is trespass. Possession
is the essence of the right; even wrongful possession is sufficient against anyone but a person
with a better title.
The case of WILSON V. LOMBANK LIMITED [1963] 1 W.L.R. 1294. A purchased a car
from B, who had no title to it. C, who was not the owner but believed himself to be, removed it.
It was held that C was liable to A in trespass.
Conversion
A person entitled to possession of goods can maintain an action for conversion against anyone
doing any act which involves a denial of his right to that possession. The same act is often, but
not always both a trespass and a conversion.
The case of FOULDS V. WILLOUGHBY [18410 8 M. & W. 540 is authority. The Defendant
refused to take the Plaintiff’s horses on his ferry, and put them on shore. This was held to be
trespass but not conversion
Acts of Conversion
The following are the acts of conversion:
1. Stealing the Plaintiff’s goods ;
2. Selling them;
3. Receiving them as a purchaser;
4. Destroying them or otherwise denying the Plaintiff’s right to them. In the case of
OAKLEY V. LYSTER (1931) 1 K.B. 148, the Plaintiff leased land and dumped material
there. The Defendant acquired freehold and wrongfully claimed the material was his. He
used some of the material himself and his solicitors warned the Plaintiff not to enter on
the land. The Defendant was held liable for conversion.
Detinue
This tort consists in the wrongful retention of the possession of a chattel. Over keeping of a hired
chattel is an example but for the tort to be committed, there must be demand by the plaintiff and /
refusal to surrender the chattel by the dependant
Who can Sue and can be sued?
Under trespass, the person who can sue is the person in possession and can thus maintain an
action in trespass.
Therefore, an owner who is out of possession cannot sue, but if he subsequently recovers
possession, it relates back to the time the right of entry accrued, and he can sue for trespasses
committed in the interval. Further a landlord can sue in trespass only if he can prove more than a
mere trespass – viz actual harm done to the property, of such sort as to affect the value of his
reversionary interest in it.
Again, a person with defacto possession can maintain trespass against anyone except the person
with the right of entry or present possession. In the case of HEMMINGS V. STOKE POGES
GOLF CLUB (1920) 1 K.B. 720, the Plaintiff was employed by the club and occupied a cottage
belonging to it. Later, he left the Defendants’ service and was called upon to give possession. On
refusal, he and his property were ejected with no more force than necessary. It was held that the
Defendants were not liable for assault or trespass.
A person wrongfully retaining possession cannot be sued as a trespasser, but the person entitled
to possession may bring an action of ejectment and claim mesne profits, i.e., in effect, the loss
sustained by being kept out of possession.
Co-tenants or joint tenants cannot sue each other in trespass on the land they occupy because
both of them are entitled to possession of the land as a whole. An action by a co-tenant or joint
tenant is only possible if the defendant’s act is intended to completely oust the plaintiff from the
land or destroying or wasting of the common property.
Defences: Consent; Lawful Authority; Necessity
The following are the defenses that the Defendant may plead:
1. Authority of the law, e.g., a policeman preventing a breach of peace; a landlord
detraining for rent; a bailiff executing process. In the case of THOMAS V. SAWKINS
[1935] 2 K.B. 249, a Police Constable insisted on being present as a private meeting
where they had reasonable grounds for thinking a breach of the peace might otherwise be
committed. It was held that no trespass was committed;
2. Abatement of a nuisance;
3. Retaking of goods;
4. Necessity. In the case of ESSO PETROLEUM CO. LTD v. SOUTHPORT
CORPORATION (1956) A.C. 218, the captain of an oil tanker lay the ship aground and
in order to save the ship and crew, large quantities of oil were discharged. The oil was
carried by a tide onto the shore. The court held that necessity was a defence to the claim
in trespass and in nuisance.
5. License, which is ‘that consent which, without passing any interest in the property to
which it relates, merely prevents the acts for which consent is given from being wrongful.
After revocation of a license the licensee becomes a trespasser, but he be allowed a
reasonable time to leave and remove his goods. A license coupled with an interest is
irrevocable.
Remedies
1. Eject the trespasser, using no more force than necessary;
2. Re-enter his land. But he must do so peacefully, otherwise he commits a crime;
3. Obtain an injunction to restrain a continuing, or to forbid a threatened, trespass;
4. Sue for damages and mesne profits (i.e. action for damages in respect of all loss suffered
by the plaintiff during the period of his dispossession of the land);
5. Bring an action of ejectment or recovery of the land;
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