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;